UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


SCHOOL  OF  LAW 
LIBRARY 


THE    LAW 


OF 


GENERAL    AVERAGE 


ENGLISH   AND    FOREIGN 


BY 
THE   LATE 

KICHAED  LOWNDES, 

.1  VEUA  GE   AD  J  US  TEE, 


AUTHOR  OF  "  THE  ADMIRALTY  LAW  OF  COLLISIONS  AT  SEA, 
"  A  PRACTICAL  TEEATISE  ON  MARINE  INSURANCE," 
ETC.,  ETC. 

FIFTH      EDITION. 
BY 

EDWARD  L.  DE  HART,  M.A.,  LL.B.  (Cantab.), 

JOINT    EDITOR   OF    "  ARNOULD   ON    MARINE   INSURANCE,"    "  MACLACHLAn's   LAW   OF 
MERCHANT    SHIPPING,"    ANU    "  SMITIl's    MERCANTILE    LAW";    OF   THE 
INNER   TEMPLE    AND   NORTH-EASTERN   CIRCL'IT, 
BARRISTER-AT-LAVV  ; 

AND 

GEORGE    RUPERT    RUDOLF, 

MEMBER   OF   THE    ASSOCIATION   OF   AVERAGE    ADJUSTERS. 


LONDON : 

STEVENS    AND     SONS,     LIMITED, 
119   &   120,   CHANCERY  LANE. 

TORONTO  :  CANADA  LAW  BOOK  COMPANY,  LIMITED. 
PHILADELPHIA:    CROMAETY  LAW  BOOK  COMPANY. 

1912. 


L 


q5- 


.\ 


(     iii     ) 


PREFACE  TO  THE  FIFTH  EDITION. 


Owing  to  the  lamented  death  of  Mr.  Lowndes  since  the 
fourth  edition  of  this  Treatise  was  published  in  1888, 
it  has  been  necessary  to  entrust  the  preparation  of  a 
New  Edition  to  other  hands. 

A  comparison  of  the  existing  conditions  of  commerce 
with  those  that  prevailed  when  Mr.  Lowndes  wrote 
sliows  that  many  changes  have  taken  place  in  the 
interval.  As  is  pointed  out  in  the  discussion  in  the 
text  on  the  treatment  of  comj^lex  salvage  operations, 
tlie  general  substitution  of  steamships  for  sailing  vessels, 
of  telegraphy  for  the  slower  means  of  communication 
by  letter,  and  other  modern  innovations,  have  not  only 
largely  affected  the  methods  of  carrying  out  established 
principles  in  practice,  but  have  also  brought  into 
existence  many  difficulties  not  considered  in  the  pre- 
vious editions  of  this  Work.  Some  of  the  problems 
fully  discussed  by  Mr.  Lowndes  have  therefore  lost 
much  of  their  practical  importance,  but  the  arguments 
that  he  used  to  establisli  the  principles  for  which  he 
contended  are  capable  of  such  wide  application,  tliat 
the  Editors  have  thought  it  advisable  to  include  them 
in  full,  even  though  the  particular  point  may  not  now 
possess    the    same    claim    to    consideration  as  when  he 

wrote. 

a2 


iv  PREFACE  TO  THE  FIFTH  EDFriON. 

^riif  cases  bearing  on  the  subject  of  General  Average, 
decided  in  tlie  course  of  the  twenty-four  years  which 
liavc  chijjsed  since  the  hist  edition  appeared,  are  fully 
noticed;  and  in  several  instances  it  will  appear  that 
tlie  decisions  confirm  the  views  previously  expressed 
b\  Mr.  Lowndes,  and  bear  testimony  to  the  influence 
of  liis  Miitings  on  the  development  of  the  law  of  General 
Average.  It  has  been  found  possible  to  retain  most  of 
his  text  unclianged,  and  to  denote  additions  or  material 
alterations  b\-  inserting  the  new  matter  in  brackets. 
On  some  of  the  controversial  questions  discussed  in  the 
AYork  {cjf.,  the  jettison  of  deck  cargo,  contribution  for 
damaj^e  \)\  water  to  goods  already  on  fire,  complex 
salvage  operations),  the  Editors  do  not  agree  with 
]\lr.  Lowndes'  conclusions;  but  whenever  they  dissent 
from  his  views  they  haA^e  reproduced  his  statements  of 
opinion  in  extenso,  and,  as  has  already  been  said,  have 
clearlv  disting-uished  them  from  their  own. 

The  almost  universal  incorporation  of  the  York- 
Antwerp  Rules  in  charter-parties,  bills  of  lading  and 
j)olicies  of  insurance,  has  prevented  disputes  which 
otherwise  nmst  have  arisen,  under  circumstances  of 
fi-equent  occurrence,  on  certain  points  which  cannot 
yet  be  considered  definitely  settled  in  our  law.  The 
Rules  wliich  were  in  use  when  Mr.  Lowndes  wrote  have 
been  amended  and  enlarged  at  the  Conference  of  the 
Association  for  the  Reform  and  Codification  of  the  Law 
of  Nations,  held  at  Liverpool  in  1890.  Tlie  present 
Rules  are  set  out  in  one  of  the  Appendices,  Avith  an 
account  of  their  history  and  references  to  decisions  in 
England  and  other  countries  on  their  construction. 

The  law  of  (ieneral  Averao-e  in  the  United  States 
closelv  resembles  our  own,  tliouoh   differino-  therefrom 


PREFACE  TO  THE  FIFTH  EDITION.  V 

on  some  points.  The  main  cause  of  the  similarity  is, 
that  the  English  common  law  is  the  foundation  on 
which  the  structure  of  American  law  has  been  reared. 
It  is  true  that  legal  decisions  on  the  law  of  General 
Average  were  almost  entirely  wanting  when  the  United 
States  broke  away  from  the  mother  country ;  but  the 
later  judgments  of  the  English  Courts  have  always  been 
studied  and  treated  with  respect  by  the  American 
judges,  and  have  greatly  influenced  the  jurisprudence 
of  the  United  States. 

So  also,  the  English  judges  and  text-writers  have 
often  derived  valuable  assistance  from  the  American 
Reports ;  and,  as  will  appear  in  the  course  of  this  Avork, 
there  is  one  difficult  subject,  viz.,  voluntary  stranding, 
on  which  there  is  a  singular  lack  of  authority  in  this 
country,  and  a  series  of  admirable  judgments  of  the 
American  Courts.  An  entirely  new  Appendix,  con- 
taining a  full  statement  of  the  law  of  General  Average 
and  the  practice  in  the  United  States,  has  been  written 
for  this  edition  by  a  prominent  average  adjuster  of  New 
York,  Mr.  W.  R.  Coe,  to  whom  the  Editors  are  greatly 
indebted  for  his  valuable  contribution.  An  additional 
Appendix  contains  the  Rules  of  Practice  of  the  Asso- 
ciation of  Average  Adjusters  of  the  United  States. 

The  principal  Appendices  on  foreign  laws  have  been 
revised  or  re-written  by  gentlemen  eminently  qualified 
to  expound  the  law  of  General  Average  of  their  respec- 
tive countries  ;  and  the  i]ditors  wish  to  express  their 
gratitude  to  these  gentlemen  (whose  names  are  particu- 
larly mentioned  in  these  Appendices)  for  the  assistance 
which  they  have  so  kindly  given.  New  Codes  have 
taken  the  place  of  several  set  out  in  the  last  edition  of 
this  Work,  the  most  noteworthy  being  the  Scandinavian 


vi  pi{i:face  to  xiiE  fifth  edition. 

Code,  of  wliicli  Mr.  Lowndes  published  a  draft,  and 
which  lias  since  been  adopted  by  all  three  Scandinavian 
States,  and  that  of  Portugal  which  came  into  force  in 
1880.  A  new  Appendix  states  the  law  of  General 
AN'eraere  in  Austria,  the  oidv  Continental  State  without 
a  Commercial  Code.  Other  Appendices  have  been 
added,  containing  extracts  from  the  Codes  of  Greece, 
Jajjan,  Mexico  and  Venezuela,  the  translation  in  the 
case  of  the  Venezuelan  Code  being  made  from  a  text 
courteously  placed  at  the  disposal  of  the  Editors  by 
Mr.  William  Bowstead,  General  Editor  of  "  The 
Commercial  Laws  of  the  World." 

The  Index  has  been  greatly  enlarged  and  contains 
nianv  new  headings,  the  dates  of  all  the  cases  cited 
have  been  inserted,  and  the  Table  of  Cases  now  gives 
references  to  all  the  Reports  of  the  English  Cases. 

E.  L.  DE  H. 
G.  R.  R. 

LOXDOX, 

December,    1911. 


Vll 


TABLE  OF  CONTENTS. 


PAGE 

Preface     ^^^ 

List  of  Statutes ^^^ 

List  of  Cases ^^ 

Comparative  Table xxxvi 

Addendum ^i^ 


INTEODUCTION. 

OuiGiN  OF  General  Average. 

The  Ehodian  maxim  :  jettison  of  cargo  taken  as  the  example  of  a 

sacrifice  for  the  common  safety 1 

Old  practice  for  owners  of  cargo  to  sail  with  the  ship    2 

Effect  of  maritime  custom 2 

The  chapter  in  the  Digest,  de  Jactu 3 

Early  Medifeval  laws  of   general  average  after  the  faU  of  the 

Eoman  Empire  :  laws  of  Oleron,  Wisbuy,  «&c 4 

Later  Spanish  and   Italian   laws,  after  the   re-discovery  of  the 

Digest  at  Amalfi   11 

Origin  of  the  word  "  average  " 1 1 

Of  the  first  great  revolution  in  commerce  :  when  merchants  began 
to  live  ashore :   and  the  new  position  of  average  when  this 

took  place 1^ 

Utility  of  the  rule  of  general  average  under  the  new  system   ....  15 

The  Guidon  de  la  Mer,  and  its  new  definition  of  general  average.  .  15 

The  Ordonnance  of  Louis  XIV.,  and  its  definition 16 

The  European  Ordinances  of  the  17th  century    16 

England   without   a   code,  but   general  average  introduced  and 

administered  b}'  merchants 1 ' 

Statute  of  Elizabeth  ;   and  the  Court  of  Insurance 17 

Customs  of  Lloyd's 1 " 

No  important  case  in  the  English  Law  Courts  till  after  1800   ....  18 


viii  TABLE  OF  CONTENTS. 

CHAPTER  I. 
Definition  and  General  Principles. 

PAGE 

Division  of  the  subject     1^ 

Definitions  of  general  average   ^1 

Discussion,  whether  the  true  origin  of  this  right  is  natural  equity 

or  contract • ^^ 

Effect  of  the  claimant's  fault  on  the  right  to  contribution 31 

How  fur  are  the  consecjuences  of  a  sacrifice  for  all  to  be  made 

good  as  general  average  ?   39 

Rule  of  Iladley  v.  Baxendale  and  similar  cases   40 

Several  acts  sometimes  to  be  grouped  together  as  one  whole    ....  41 
Thing  sacrificed  and  made  good  must  contribute  along  with  what 

arrives 42 

Is  eventual  success  necessary  '?  42 

Danger  :  how  far  requisite  to  found  claim  for  general  average    .  .  43 
For  general  average,  must  an  outlay  be  extraordinaiy,  not  merely 

in  degree,  but  in  kind  V 46 

Must  the  sacrifice  be  the  act  of  the  master  ?     48 

Doctrine    of    general   average    is    only    applicable   to   maritime 

adventures     52 


CHAPTER  II. 

Sacrifices  of  Cargo. 

Preliminary  remarks      53 

Jettison  of  cargo 55 

Mouse's  case 55 

Gratitudine,  The 56 

Price  V.  Nohle   57 

Deckload  jettison 59 

Older  authorities 62 

Ancient  practice  in  England 62 

Modern  decisions 62 

Mr.  Lowndes'  summary  of  the  law  of  deckload  jettison     ....  71 

Uf  locomotives  on  deck    72 

The  editors'  view  as  to  jettison  of  deck  cargo 72 

Cargo  jettisoned  from  poop  or  deckhouses 77 

Jettison  from  fault  of  cargo  :  rule  as  to   77 

Damage  incidental  to  jettison :   cg.^  damage  to  cargo  from  seas 

shipped  while  hatches  open    81 


TABLE  OF  CONTENTS.  IX 

CHAPTER  U.^continued.  page 

Damage  done  in  quencliing  lire 82 

Old  practice  amongst  adjusters,  not  to  treat  this  as  general 

average  

This  practice  condemned  by  the  Courts    84 

Packages  actually  on  fire  still  excluded  in  practice     93 

Cargo  burnt  as  fuel,  if  ship  and  cargo  are  both  in  danger,  and 
the  original  supply  of  fuel  was  reasonable  for  the  voyage,  is 

general  average    ^^ 

Damage  to  cargo  in  discharging  :  various  cases  of     99 

Damage  to  cargo  by  voluntary  stranding   ■ 102 

Damage  to  cargo  from  cutting  away  mast    102 

Cargo  given  as  salvage    •  •  ■  • 

Cargo— loss   by   sale,  or  pledging  of  cargo  to  raise  money  for 

general  average    • 

Sacrifice  of  goods  not  included  in  the  cargo— passengers'  effects.  .    103 
Loss  of  freight  consequent  on  sacrifice  of  cargo 100 


103 
103 


CHAPTER  III. 

Sacrifices  of  Ship. 

General  principles    ^^0 

Jettison  of  ship's  stores,  is  general  average     112 

Unless  improperly,  i.e.,  unusually,  carried  on  deck    112 

Cutting  away  cables  and.  ropes 112 

Carrying  press  of  sail,  damage  by,  not  general  average    114 

Aliier,  if  to  get  ship  off  shore    1  !•'' 

Damage  by  fighting,  not  general  average    116 

Ship's  materials  used  on  emergency  for  fuel   H  ' 

State  of  wreck  :     118 

Old  doctrine  as  to     118 

Emerigon's  doctrine  as  to   118 

English  decisions  and  dicta     119 

Suggested  practical  application  of  these  cases     128 

Cases  which  have  occurred  in  practice 130 

Miscellaneous  cases,  in  practice 131 

Cases  of  sacrifice  merged  in  subsequent  loss ;  how  treated   .  .  132 

Boats  or  spars  washed  adrift 132 

Foul  anchors     - 133 

Twisted  chains 133 

Ends  of  parted  chains 133 

Jury-rig  and  analogous  cases     134 

Temporary  repair  at  port  of  refuge 137 


X  TABLE  OF  CONTENTS. 

CHAPTKn  111.— rotitintied.  page 

Damage  done  to  ship  in  getting  her  afloat 138 

Sacrifice  merged  in  subsequent  loss 139 

Damage  by  tug  in  rendering  salvage  service 141 

Damage  by  using  engines  to  force  steamer  off  ground 141 

Sails  cut  away  to  save  a  spar 143 

Voluntary  stranding    143 


CHAPTER  IV. 

Extraordinary  Expexditure. — Part  I. 

Division  between  sacrifice  and  expenditure 172 

Salvage  in  general  174 

Salvage  of  life 182 

Complex  salvage  operations  :  classification 183 

Cases  bearing  on  the  question,  what  is  an  entire  salvage  operation, 
\'iz.  : — 

Kemp  V.  Halliday      187 

Job  V.  Langton 188 

Moran  v.  Jones 190 

Wnlihew  v.  Mavrojcmi 194 

Royal  Mail  Co.  v.  English  Bank  of  Rio    198 

Application  of  these  decisions  in  practice 200 

Whether  all  must  be  specific,  or  all  general  average 200 

Salvage  operations  under  modern  conditions   205 

Expenses  of  removing  to  a  market  or  port  of  shipment     ....  209 

Cost  of  reloading 211 

Treatment  when  ship  derelict     213 


CHAPTER  V. 

Extraordixary  Expenditure. — Part  II. 

Port  of  refuge  expenses. 
Div.  I. — Principle. 

Statement  of  the  general  question     216 

Former  state  of  practice  in  this  country,  and  earlier  decisions  218 

Aticood  V.  Sellar  in  Queen's  Bench   220 

Same  rase  in  Court  of  Appeal    225 

Svendsen  v.   Wallace — 

Question  as  to  custom 230 

principle — Court  of  Appeal 234 

House  of  Lords    244 

Conclusion  :   effect  of  these  two  decisions 249 


TABLE  OF  CONTENTS.  XI 

CHAPTEE  \ .—continued.  page 
Div.  II. — Application  to  details. 

Mixed    cases:     bearing   up    partly   for    sacrifice    partly    for 

accidental  damage    255 

At  wliat  point  safety  is  attained    257 

Discharging  cargo    259 

Eeloading  charges,  when  freight  is  prepaid     261 

Admitted  cases  where  cost  of  reloading  is  general  average  .  .  262 

Substituted  expenses   262 

Effect  of  condemnation    272 

Wages  and  keep  of  crew     279 


VxRT  11.— ADJUSTMENT  OF  GENERAL  AVERAGE. 


CHAPTEE  YI. 

Time,  Place,  and  State  of  Facts  which  are  to  regulate  the 

Adjustment. 

Proper  place,  when  voyage  accomplished,  is  port  of  destination  .  .  290 

When  voyage  broken  up,  average  should  be  adjusted  on  the  spot.  293 

What  justifies  breaking  up  voyage    29-i 

Effect  of  subsequent  accident  on  contribution 300 

Voyages  with  cargo  destined  for  two  or  more  ports    313 


CHAPTER  VII. 

Mode  of  Computing  the  Amount  to  be  made  good. 

Introduction  and  division  of  the  subject 318 

Part  I. — Disbursements. 

Sale  of  cargo  to  raise  funds    321 

Richardson  v.  A^ourse,  and  other  decisions 321 

Bottomry  loans 327 

Conflict  of  laws     328 

Gaetano  and  Maria,  The 329 

Part  II. — Sacrifices. 

(a)  Eules  for  computing  jettison   335 

In  case  of  arrival  of  ship     336 

Sales  afloat  or  "to  arrive  "  disregarded    337 

How,  if  goods  jettisoned  are  damaged 337 

Effect  of  subsequent  accident 338 

Loss  of  freight  by  jettison 339 


Xii  TABLE  OF  CONTENTS. 

CHAPTEE  VII.  Tart  II. — Sacrifices — continued.  page 

(b)  Sncrifiees  of  shij^'s  materials    341 

Measure  of  damages    341 

Deduction,  new  for  old    342 

No  deduction  on  first  voyage 344 

Eules  of  Adjusters'  Association 346 

Rule  when  ship  is  not  repaired 347 


CHAPTER  VIII. 

CONTKIBUTING  INTERESTS  AND  VaLUES. 

General  principle 350 

Value  of  ship     351 

Value  of  cargo 353 

Value  of  freight    354 

"When  does  interest  in  freight  commence  ?    362 

Of  speculative  charters     366 

Of  advances  under  charter 369 

Deductions  from  freight 372 

Other  contributing  interests    ' 375 


CHAPTER  IX. 

Lien  for  General  Average,  and  Remedies. 

Shipowner's  common  law  right  of  lien 384 

Stiitutory  additions 387 

Remedies  of  cargo-owner    389 

Crooks  V.  Allan     391 

The  average  agreement 395 

Hulh  V.  Lamport 397 

Admiralty  and  County  Court  jurisdiction     404 

Admiralty  Amendment  Act,  1861 406 

County  Court  Admiralty  Act 409 


TABLE  OF  CONTENTS.  Xlll 


APPENDICES. 

PAGE 

A. — The  Eoaiax  Civil  Law    411 

B. — CONSOLADO  DEL  MaRE 420 

C. — The  Law  of  the  Argentine  Republic 422 

D. — The  Law  oe  Austria 452 

E. — The  Law  of  Belgiu^i 457 

F.— The  Laav  of  Brazil     478 

G. — The  Law  of  Chili   484 

H. — The  Laav  of  Denmark    495 

I. — The  Law  of  France     496 

J.— The  Law  of  Germany 519 

K. — ^The  Law  of  Greece    560 

L. — The  Law  of  Holland 566 

M. — The  Law  of  Italy 597 

N. — The  Law  of  Japan , 615 

0. — The  Law  of  Mexico    621 

P. — The  Laav  of  Xorwav 636 

Q. — The  Law  of  Peru    637 

E. — The  Law  of  Portugal    638 

S. — TiiE  Law  of  Eussia 653 

T.— The  Law  of  Spain   660 

U. — The  Law  of  Sweden 690 

Y. — The  Law  of  United  States  of  America 718 

W. — The  Law  of  Uruguay^ 779 

X. — The  Law  of  Venezuela 783 

Y. — The    International    General    Average    Congresses   and 

Y'ork-xIntwerp  Eules    788 

Z. — Eules     of     Practice     of     the    Association    of    Average 

Adjusters 803 

A  A. — Warehousing  Clauses  of  Merchant  Shipping  Act,  1894, 

AND  Mersey  Docks  Consolidation  Act,  1858 815 

BB. — Lloyd's  Average  Bond  and  Guarantee 821 

CC. — Eules    of    Practice    of    the    Association    of    Average 

Adjusters  of  the  LTnited  States     824 


INDEX     827 


(     xiv     ) 


LIST  OF  STATUTES. 


— ♦ — 

PAGE 

Merchant  Shipping  Act,  1854  :    17  &  18  Vict.  c.  104, 

S.  00     '5- 

s.  503 87 

Common  Law  Pr(.tedure  Act,  1854  :    17  &  18  Yict.  c.  125,  s.  87  .  .  382 

Mersey  Docks  Consolidation  Act,  1858 388 

Admiralty  Court  Act,  1861  :  24  Yict.  c.  10,  s.  6 406 

Merchant  Shipping  Act,  1862  :  25  &  26  Vict.  c.  63    387 

County  Courts   Admiralty  Jurisdiction   Amendment  Act,    1869  : 

31  &  32  Vict.  c.  71   409 

Bills  of  Exchange  Act,  1882  :   45  &  46  Vict.  c.  61,  ss.  69,  70    382 

Merchant  Shipping  Act,  1894  :  57  &  58  Vict.  c.  60, 

s.  157 '284,  286,  373 

8.  158   284,  373 

s.  260 373 

s.  261 373 

s.  263 373 

ss.  493—501 387 

s.  502 87 

8.  544 182 

s.  545 183 

Marine  Insurance  Act,  1906  :   6  Edvv.  7,  c.  41, 

s.  39    <)9 

8.  55    32 

s.  65    307 

8.  66    25,  26,  43,  45,  359 

»•  (>7    359 


(       XV 


LIST  OF  CASES. 


[TVic  references  in  italics  indicate  the  j)ages  where  the  cases  are  set  forth  most  at  large.  \ 


A. 

PAGE 

Achard  v.  Eing,  31  L.  T.  647  ;  2  Asp.  M.  C.  422    87,  93,  225 

African  Steamship  Co.  v.  Swanzy,  2  K.  &  J.  660  ;   25  L.  J.  Ch. 

870  ;  4  W.  E.  210,  692    352 

Akerblom  v.  Price,  7  Q.  B.  D.  129  ;  50  L.  J.  Q.  B.  629  ;  44  L.  T. 

837  ;  29  W.  E.  797  ;  4  Asp.  M.  C.  441     182 

Albion,  The,  Lush.  282 179 

Alina,  The,  5  Ex.  D.  227  ;  49  L.  J.  Adm.  40  ;  42  L.  T.  517  ;  29 

W.  E.  94  ;    4  Asp.  M.  C.  256 409 

Allen  V.  Newberry,  21  How.  244   719 

Allen  V.  Smith.  12  C.  B.  (N.  S.)  638  ;  31  L.  J.  C.  P.  306  ;  9  Jur 

(N.  S.)  230,  1284  ;  6  L.  T.  459  ;  10  W.  E.  646  ;  11  W.  E.  440  .  386 
Allison  V.  Bristol  Mar.  Ins.  Co.,  L.  E.  9   C.  P.  559  ;  1   App.  Cas. 

209  ;  34  L.  T.  809  ;   24  W.  E.  1039  ;   3  Asp.  M.  C.  178 261,  371 

Alpine,  The,  23  Fed.  E.  815 777 

Anderson  v.  Ocean  S.S.  Co.,  13  Q.  B.  D.  651  ;   10  App.  Cas.  107  ; 

54  L.  J.  Q.  B.  192  ;  52  L.  T.  441  ;   33  W.  E.  433 ;   5  Asp.  M.  C. 

401 24,  31,  43,  176,  386 

Anglo- Argentine  Live  Stock  Agency  i-.  Temperley  S.S.  Co.,  [1899] 

2   Q.    B.    403;   68  L.  J.   Q.   B.    900;   81   L.  T.  296;  48   VV.  E. 

64  ;   15  T.  L.  E.  472  ;  4  Com.  Cas.  281  ;   8  Asp.  M.  C.  595.  .41,  282, 

283,  288 

AnnapoHs,  The,  Lush.  355  ;  5  L.  T.  37    179 

Ansonia  Clock  Co.  v.  N.  Y.&  Cuba  Mail  S.S.  Co.. (The  "Yucatan"), 

139  Fed.  E.  894 733,  736 

ApoUinaris  Co.  v.  Nord  Deutsche    Ins.  Co.,  [1904]    1  K.  B.  252  ; 

73  L.  J.  K.  B.  62  ;  89   L.  T.  670  ;  52   W.  E.  174  ;  20   T.  L.  E. 

79  ;   9  Com.  Cas.  9 1  ;  9  Asp.  M.  C.  526 59,  76 

Argo,  The,  Mar.  Eeg.,  24  Mar.  1882 37 


Xvi  LIST  OF  CASES. 

PAGE 

Argos,  Cargu  ex,  L.  E.   5  R  C.  134  ;  42  L.  J.  Adm.  49  ;  28  L.  T. 

745  ;  21  W.  E.  707  ;   2  Asp.  M.  C.  6     409 

Arno,  The,  8  Asp.  M.  0.  5  ;  72  L.  T.  621     215 

Ashmulo  r.  Wainwright,    2  Q.   B.  837;  2   (a.  &  D.  217;    11  L.  J. 

Q.  B.  79  ;  G  Jur.  729  ;    57  E.  E.  817     386 

Aspiuwall  r.  Merchant  Sliipping-  Co.,  cited  45  L.  J.  Q.  B.  646 88 

Assicurazioni  Geaerale  v.  S.S.  Bessie  Morris  Co.,  [1892]  2  Q.  B. 

652  ;  61    L.  J.  Q.  B.  754  ;  67  L.  T.  218  ;  41  W.  E.  83  ;   7  Asp. 

M.  C.  217  ;  4  E.  33 272,  273 

Atkinson  r.  Stephens,  7  Exch.  567  ;  21   L.  J.  Ex.  329;   86  E.  E. 

739 323,327 

Atwood  V.  SeUar,  4  Q.  B.  D.  359 ;  5  Q.  B.  D.  286 ;  49  L.  J.  Q.  B. 

515  ;  42  L.  T.  644  ;  28  W.  E.  604  ;  4  Asp.  M.  C.  283.  .91,  92,  220, 
221,  223,  225,  229,  230,  237,  238,  242,  245,  246,  247,  248, 

273,  275,  281 
August,  The,  [1891]  P.  328  ;  60   L.  J.  Adm.  57  ;   66  L.  T.  32 ;   7 

Asp.  M.  C.  110 278,  333 


B. 

Bahia,  Tlie,  Br.  &  Lush.  61    .' 407 

Bahia,  The,  Br.  &  Lush.  292  ;   12  L.  T.  145  ;  2  Mar.  L.  Cas.  174  ; 

14W.  E.  411;   llJur.  (N.  S.)90 277 

Balian  r.  Joly,  6  Times  L.  E.  345 217 

Balmoral  S.S.  Co.  v.  Marten,  [1902]  A.  C.   511  ;    71  L.  J.  K.  B. 

819  ;  87  L.  T.  247  ;    51  W.  E.  175  ;    7  Com.  Cas.  292  ;  9  Asp. 

M.  C.  321 135 

Barber  v.  Fleming,  L.  E.  5  Q.  B.   71  ;    39  L.  J.   Q.  B.  25  ;    10 

B.  &  S.  879  ;   18  W.  E.  254     363 

Barnard  r.  Adams,  10  Howard's  Eep.  270,  307  (U.  S.  Sup.  Ct.).  .  152, 

155,  162,  729,  741,  762,  763,  764,  769,  770,  778 

Bedford  Commercial  Ins.  Co.  v.  Parker,  2  Pickering,  1     192 

Benstjn  v.  Duncan.     (See  Duncan  v.  Benson.) 308 

Ben-y  Coal  Co.  v.  Chicago,  &c.  E.  Co.,  116  Mo.  App.  214     776 

Besse  v.  Hecht,  85  Fed.  E.  677 761 

Betsey,  The,  2  W.  Eob.  167  ;  2  No.  of  Cas.  409     179 

Be  van  r.  Bank  of  United  States,  4  Wharton,  301 191 

Birkley  v.  Presgrave,  1  East,  220  ;  6  E.  E.  256     18,  21,  112,  114, 

138,  189,  234,  238,  258,  384,  720 
Bhisco  r.  Fletcher.  14    C.  B.  (N.  S.)  147;    32  L.  J.  C.  P.  284;    9 

L.  T.  169;   11  W.  E.  997;  9  Jur.  (N.  S.)  1105     273,  276 

Boiui,  The,  [1895]  P.  125  ;  64  L.  J.  Adm.  62  ;    71   L.  T.  870  ;    43 

AV.  E.  290  ;   11  E.  707  ;  7  Asp.  M.  C.  557     .  .47,  115,  134,  138,  U2 


LIST  OF  CASES.  XVll 

PAGE 

Bowriug  V.  Thebaud,  42  Fed.  E.  794  ;  56  Fed.  E.  520  .  .739,  742,  758 

Boyd  V.  Dubois,  3  Camp.  133 78 

Bradhurst  v.  Columbian  Ins.  Co.,  9  Johns.  (N.  Y.)  Eep.  9 152 

Bradley  v.  Cargo  of  Lumber,  29  Fed.  E.  648 764 

Bridge  v.  Niagara  Ins.  Co.,  1  Hall,  467 760 

Brigella,  The,  [1893]  P.  189  ;    62  L.  J.  Adm.  81  ;    69  L.  T.  834  ; 

I  E.  616  ;  7  Asp.  M.  C.  337    354 

Brig  Mary,  The,  1  Spragae,  51 ;  Fed.  Cas.  9188     746,  761,  772 

Briggs  V.  Merchant  Traders'  Association,  13  Ci.  B.  167  ;     18  L.  J. 

Q.  B.  178  ;   13  Jur.  787  ;  78  E.  E.  341   175,  312 

Broadnax  v.  Cheraw,  &e.  C.  E.,  157  Pa.  St.  140 776 

Brown  v.  Cornwell,  1  Eoot's  (Conn.)  E.  60 , 719,  745 

Brown  v.  Stapyleton,  4  Bing.  119  ;    12  J.  B.  Moore,  334  ;  5  L.  J. 

(0.  S.)  C.  p.  121  ;  29  E.  E.  524 376,  380 

Burton  r.  English,  12  Q.  B.  D.  218  ;  53  L.  J.  Q.  B.  133  ;  49  L.  T. 

768  ;   32  W.  E.  655  ;  5  Asp.  M.  C.  187 24,  28,  29,  30,  31,  60, 

65,  67,  69 

Butler  V.  Wildman,  3  B.  &  Aid.  398  ;  22  E.  E.  435 59 

Byrne  v.  Schiller,  L.  E.  6  Ex.  20,  319  ;  40  L.  J.  Ex.  177  ;  25  L.  T. 

211;  19  W.  E.  1114;   1  Asp.  M.  C.  Ill 372 


C. 


Caledonia,  The,  157  U.  S.  124  737 

Campbell  v.  The  "  Alknomac,"  Bee,  124  ;  Fed.  Cas.  2350  .719,  754,  760 

Cargo  ex  Argos.      [See  Argos,  Cargo  ex) 409 

Cargo  ex  Galam.     (See  Galam,  Cargo  ex)   ....   23,  276,  384,  405,  406 

Cargo  ex  Laertes.     (See  Laertes,  Cargo  ex)     35 

Cargo  ex  Sarpedon.     (See  Sarpedon,  Cargo  et) 183 

Cargo  ex  Schiller.     (See  Schiller,  Cargo  ex)    183 

Carisbrook   S.S.  Co.   v.  London  and   Provincial   Mar.   Ins.   Co., 

[1901]  2  K.  B.  861  ;   [1902]   2  K.  B.  681  ;   70  L.  J.  K.  B.  930  ; 

71   L.  J.  K.  B.  978  ;   87  L.  T.  418  ;  50  W.  E.  42,  691  ;   6  Com. 

Cas.  291  ;  7  Com.  Cas.  235  ;  9  Asp.  M.  C.  332  ;   17  T.  L.  E.  764; 

18  T.  L.  E.  783     , 359,  367 

Carron  Park,  The,  15  P.  D.  203  ;   59  L.  J.  Adm.  74  ;  63  L.  T.  356; 

39  W.  E.  191  ;  6  Asp.  M.  C.  543 37,  39 

Caze  V.  Eeilly,  3  Wash.  C.  C.  E.  298  ;  Fed.  Cas.  2538 152, 

720,  741,  754 

Chamberlain  v.  Eeed,  1 3  Me.  357 777 

Charlotte,  The,  3  W.  Eob.  68  ;  6  No.  of  Cas.  279 178 

Charlotte  Wylio,  The,  2  W.  Eob.  495 177 

L.  b 


Xviii  LIST  OF  CASES. 

PAOE 

Chartered  jMercantile  Bank  of  India  v.  Netherlands  Steam  Nav. 
Co.,  9  Q.  B.  D.  118;  10  Q.  B.  D.  521  ;  51  L.  J.  Q.  B.  393;  52 
L.  J.  a  B.  220  ;  46  L.  T.   530  ;  48  L.  T.  546  ;  31  W.  E.  445  ; 

47  J.  P.  260  ;  4  Asp.  M.  C.  523  ;  5  Asp.  M.  C.  65 36,  278 

China  and  Trans-Pacific  Co.  v.  Marine  Ins.  Co.,  11  App.  Cas.  573; 
56  L.  J.  Q.  B.  lOU  ;   55  L.  T.  491  ;  35  W.  E.  169  ;   6  Asp.  M.  C. 

68    132 

Cliristal  v.  Flint,  82  Fed.  E.  472 "69 

Cito,  The,  7  P.  D.  5  ;  51  L.  J.  Adm.  1  ;  45  L.  T.  663;   30  AY.  E. 

836  ;  4  Asp.  M.  C.  468     215 

City  of  Para,  The.     (See  Pacijic  Mail  S.S.  Co.  v.  N.  Y.  H.  ^-  R. 

M.  Co.) 730,  740,  746,  747,  754 

City  of  Worcester,  The.     (See  Norwich  ^^  N.    Y.    Trans.   Co.  v. 

Ins.  Co.  o/N.  A.)    737,  741,  748 

Cleary  r.  McAndrew,  2  Moo.  P.  C.  C.  (N.  S.)  216;  Br.   &  Lush, 
167;  3  X.  E.   254;  33  L.  J.   Adm.  97;   9  L.  T.  550;   10  Jur. 

(N.  S.)  477  ;   12  W.  E.  495  ;   1  Mar.  L.  Cas.  408     405,  406 

Coast  Wrecking  Co.  v.  Phoenix  Ins.  Co.,  7  Fed.  E.  236  ;  13  Fed. 

E.  127,  382    778 

Cohn  V.  Davidson,  2  Q.  B.  D.  455  ;  46  L.  J.  Q.  B.  305 ;  36  L.  T. 

244 ;  25  W.  E.  369  ;  3  Asp.  M.  C.  374  33 

Columbian  Ins.  Co.  v.  Ashby,  13  Peters  S.  C.  E.  338    153,  721, 

724,  737,  741,  746,  768 

Conrad  v.  Montcourt,  138  Mo.  31 1     776 

Copenhagen,  The,  1  C.  Eob.  289 18,  241 

Corry  v.  Couhhard,  2  C.  P.  D.  583 ;  3  Asp.  M.  C.  546,  n 120, 

122,  125,  126 

Covington  v.  Eoberts,  2  B.  &  P.  (N.  E.)  378  ;  9  E.  E.  669 22, 

lU,  138,  142,  145 

Crockett  v.  Dodge,  3  Fairf.  (12  Mee.)  190 90,  94,  746 

Crooks  I'.  Allan,  5  Q.  B.  D.  38  ;  49  L.  J.  Q.  B.  201  ;  41  L.  T.  800; 

28  W.  E.  304  ;  4  Asp.  M.  C.  216 52,  391,  393,  394,  398 

Crowe  V.  Clay,  9  Exeh.  604;  23  L.  J.  Ex.  150;  18  Jur.  654;  2 

W.  E.  204 ;  23  L.  T.  (0.  S.)  38 ;  96  E.  E.  867 381 

Crusader,  The,  [1907]  P.  15,  196;  76  L.  J.  Adm.  19,  102;  96 
L.  T.  126  ;  97  L.  T.  20  ;  23  T.  L.  E.  382  ;  10  Asp.  M.  C.  353, 
442.  .,  , 176 


D. 

Dabney  v.  Ne\v  England  Co.,  14  Allen,  300    745 

Dalglibh  V.  Davidson,  5  Dowl.  &  Ey.  6;  27  E.  E.  519 292 

Danzig,  The,  Br.  &  Lush.  102 ;  32  L.  J.  Adm.  164 ;  9  L.  T.  236.  .  407 


LIST  OF  CASES.  XIX 

PAGE 

De  Cuadra  v.  Swanu,  10  C.  B.  (N.  S.)  772 273,  274,  27o 

De  Silvale  v.  Kendall,  4  M.  &  S.  37  ;   IG  E.  E.  373 371 

De  Vaux  v.  J'Anson,  5  Bing.  (N.  C.)  519;  7  Scott,  507  ;  8  L.  J. 

C.  P.  284  ;   2  Avn.  82  ;   3  Jur.  678  ;   50  E.  E.  786 363 

De  Vaux  v.  Salvador,  4  A.  &  E.  420 ;  6  N.  &  M.  713  ;  1  H.  &  W. 

751  ;   5  L.  J.  K.  B.  134  ;  43  E.  E.  374 280,  281 

Dickenson  v.  Jardine,  L.  E.  3  C.  P.  639  ;   37  L.  J.  C.  P.  321  ;   18 

L.  T.  717;    16W.  E.  1109 313 

Dixon  V.  Eoyal  Exchange  Shipping  Co.  12  App.  Cas.  11  ;  56  L.  J. 

Q.  B.  266  ;  56  L.  T.  206  ;   35  W.  R.  461  ;  6  Asp.  M.  C.  92  .  .  69,  77 
Dobell  I'.  S.S.  Eossmore  Co.,  [1895]  2  Q.  B.  408;   64  L.  J.  Q.  B. 

777  ;   73  L.  T.  74 ;  44  W.  E.  37  ;  ^14  E.  558  ;  8  Asp.  M.  C.  33  . 

38,  39 

Dobson  V.  Wilson,  3  Camp.  480  ;  14  E.  E.  817 37,  58,  389 

Dollar  V.  La  Fonciere,  162  Fed.  E.  563   739 

Dorothy  Foster,  The,  6  C.  Eob.  88    311 

Douglas  V.  Moody,  9  Mass.  518 769,  770 

Duncan  v.  Benson,  1  Exch.  537  ;  3  Exch.  644;   17  L.  J.  Y.x.  238; 

18  L.  J.  Ex.  169 ;   14  Jur.  218  ;  77  E.  E.  776     : 308 

Dunham  v.  Commercial  Ins.  Co.,  11  Johns.  C.  315    765 

Dupont  V.  Yance,  19  How.  (U.  S.  Sup.  Ct.)  162 773,  777 

Duranty  v.  Hart  (The  Hamburg),  2  Moo.  P.  C.  C.  (N.  S.)  289 ; 

32  L.  J.  Adni.  161  ;  33  L.  J.  Adm.  116  ;  Br.  &  L.  253  ;   10  L.  T. 

306  ;   12  W.  E.  628  ;    10  Jur.  (N.  S.)  600    29,  329,  332 


E. 


Earnmoor  S.S.  Co.  v.  New  Zealand  Ins.  Co.,  73  Fed.  R.  867.  .739,  757 
Eden  v.  Poole,  1  T.  E.  132,  n. ;  Park  Ins.  (8th  ed.)  117,  288  ...  .    280 

Edwards  v.  Sauthgate,  10  W.  E.  528    387 

Elderslie  S.S.  Co.  v.  Borthwick,  [1904]  1  K.  B.  319  ;  [1905]  A.  C. 
93  ;  73  L.  J.  K.  B.  240  ;  74  L.  J.  K.  B.  338  ;  90  L.  T.  187  ;  92 
L.  T.  274  ;  52  W.  E.  439  ;  53  W.  E.  401  ;  20  T.  L.  E.  184 ;  21 
T.  L.  E.  277  ;  9  Com.  Cas.  126  ;   10  Com.  Cas.  109  ;   9  Asp.  M.  C. 

513  ;   10  Asp.  M.  C.  25    34 

Eliza  Lines,  The,  61  Fed.  E.  308 31 

Eliza  Lines,  The,  102  Fed.  E.  184  ;  114  Fed.  E.  307.  .  .  .353,  761,  763 

Ellora,  The,  Lush.  550    177 

EmiHe  Galline,  The,  [1903]  P.  106  ;  72  L.  J.  P.  39  ;  88  L.  T.  743; 

9  Asp.  M.  C.  401    177,  180 

Emma,  The,  2  W.  Eob.  315  ;  3  No.  of  Cas.  114     180 

b  2 


XX  LIST  OF  CASES. 

PAGE 

Ettrick,  The  (Prehn  v.  Bailey),  6  P.  D.  127;  50  L.  J.  Adm.  65; 

54  L.  T.  399 ;  4  Asp.  M.  C.  465     36. 

European  &  Australian  E.  M.  Co.  v.  P.  &  0.  Steam  Nav.  Co.,  12 

Jur.  (N.  S.)  909  ;   14  L.  T.  704  ;   14  W.  E.  843  ;  2  Mar.  L.  Cas. 

351 52 


Falcke  v.  Scottish  Imperial  Ins.  Co.,  34  Ch.  D.  234  ;  56  L.  J.  Ch. 

707  ;  56  L.  T.  220  ;  35  W.  E.  143    52 

Fawcus  V.  Sarsfield,  6  E.  &  B.  192  ;  25  L.  J.  Q.  B.  249  ;  2  Jur. 

(N.  S.)  665  ;  26  L.  T.  (0.  S.)  323  ;   106  E.  E.  559 35 

Fenwick  v.  Eobinson,  3  C.  &  P.  324  ;  Danson  &  LI.  8  ;  33  E.  E. 

675 344 

Fletcher  v.  Alexander,  L.  E.  3  C.  P.  375  ;  37  L.  J.  C.  P.  193  ;  18 

L.  T.  432  ;  16  ^Y.  E.  803  ;  3  Mar.  L.  Cas.  69 23,  107,  S93, 

294,  296,  300,  302,  339,  354,  355 
Flint  V.  Flemyng,  1  B.  &  Ad.  45  ;  8  L.  J.  (0.  S.)  K.  B.  350  ;  LI. 

&  Wels.  257  ;  35  E.  E.  205    361 

Foley  V.  United  Fire  and  Life  Ins.  Co.  of  Sydney,  L.  E.  5  C.  P. 

155  ;  39  L.  J.  C.  P.  206  ;  22  L.  T.  108  ;    18  W.  E.  437     363 

Forbes  v.  Aspinall,  13  East,  323 ;   12  E.  E.  352 361,  363 

Fowler  v.  Eathbones,  12  Wall.  102   738,  748,  759 

Frayes  or  Trayes  v.  Worms,  19  C.  B.  (N.  S.)  177  ;  34  L.  J.  C.  P. 

274  ;   12  L.  T.  547  ;   13  W.  E.  898  ;   11  Jur.  (N.  S.)  639     .  .370,  372 

Fri,  The,  154  Fed.  E.  333 736- 

Fusilier,  The,  Br.  &  Lush.  341  ;  34  L.  J.  Adm.  25  ;  3  Moo.  P.  C.  C. 

(N.  S.)  51;   10  L.  T.   699;   12  L.  T.   186;    13  W.  E.  592;   11 

Jur.  (N.  S.)  289  ;  2  Mar.  L.  Cas.  39,  177       183 


G. 

Gaetano  and  Maria,  The,  7  P.  D.  1,  137  ;  51  L.  J.  P.  67  ;  46  L.  T. 
835;  30  W.  E.  766;  4  Asp.  M.  C.  535     277,  278,  389,  330,  333 

Gaiam.  Cargo  ex,  Br.  &  Lush.  167  ;  33  L.  J.  Adm.  97;  2  Moo. 
P.  C.  C.  (N.  S.)  216;  9  L.  T.  550  ;  12  W.  E.  495  ;  10  Jur. 
(N.  S.)  477  ;  1  Mar.  L.  Cas.  408 23,  276,  384,  4^5,  406 

Galatea,  The,  S^ab.  349 ;  4  Jur.  (N.  S.)  1064 179,  180 

Gas  Float  Whitton  (No.  2),  The,  [1895]  P.  301  ;  [1896]  P.  42  ; 
[1897]  A.  C.  337;  65  L.  J.  Adm.  17;  66  L.  J.  Adm.  99;  73 
L.  T.  698;  76  L.  T.  663  ;  44  AV.  E.  263;  8  Asp.  M.  C.  110, 
272 52 


LIST  OF  CASES.  XXI 

PAGE 

Oenesee  Chief,  The,  12  How.  443 "19 

George  Dean,  The,  Swab.  290   310 

Gibbs  V.  Gray,  2  H.  &  N.  22  ;  26  L.  J.  Ex.  286  ;  3  Jur.  (N.  S.) 

543  ;  5  W.  E.  608  ;   1 15  E.  R.  408    275 

Gillett  V.  Ellis,  1 1  111.  519 "77 

Gilroy  V.  Price,  [1893]  A.  C.  56;   1   E.  76;  68  L.  T.  302;  7  Asp. 

M.  0.  314  ...^ 34 

Glenfruin,  The,  10  P.  D.  103  ;  54  L.  J.  Adm.  49  ;  52  L.  T.  769  ; 

33  W.  E.  826  ;  5  Asp.  M.  C.  413 33 

Goodwillie  v.  McCarthy,  45  111.  186 758 

Gould  V.  Oliver,  4  Bing.  (N.  C.)   134;  5  Scott,  445  ;  3  Hodges, 

307  ;  7  L.  J.  C.  P.  68 ;  44  E.  E.  674   62,  63,  67 

Grainger  v.  Martin,  4  B.  &  S.  9  ;  31  L.  J.  Q.  B.  186  ;  8  L.  T.  796  ; 

1 1  W.  E.  758  ;  8  Jur.  (N.  S.)  995 352 

Grange  v.  Taylor,  20  T.  L.  E.  386  ;  9  Com.  Cas.  223  ;  90  L.  T. 

486  ;  52  W.  E.  429  ;  9  Asp.  M.  C.  559  30 

Gratitudine,  The,  3  C.  Eob.  240    26,  29,  56,  57,  304 

Gray  v.  Wain,  2  Serg.  &  Eawls.  (Penns.)  E.  228 152,  741 

Greenock  S.S.  Co.  v.   Maritime   Ins.  Co.,  [1903]   1    K.  B.  367; 

[1903]  2  K.  B.  657;  72  L.  J.  K.  B.  59,  868  ;  51   Y/.  E.  447  ; 

52  W.  E.  186  ;  88  L.  T.  207  ;  89  L.  T.  200  ;    19  T.  L.  E.  107, 

680 ;  8  Com.  Cas.  78 ;  9  Com.  Cas.  41  ;  9  Asp.  M.  C.  463     ....      99 
Greenshields  v.  Stephens,  [1908]  1  K.  B.  51  ;  [1908]  A.  C.  431  ; 

77  L.  J.  K.  B.  124,  985;  99  L.  T.  597  ;  24  T.  L.  E.  880;    13 

Com.  Cas.  91  ;    14  Com.  Cas.  41  ;    10  Asp.  M.  C.  597  ;    11  Asp. 

M.  C.  167 81,  88,  93,  94,  109,  720 

GriU  V.  General  Iron  Screw  Colliery  Co.,  L.  E.  1  C.  P.  600  ;  L.  E. 

3  C.  P.  476  ;  35  L.  J.  C.  P.  321 ;  37  L.  J.  C.  P.  205  ;   14  L.  T. 

711  ;  18  L.  T.  485;  14  W.   E.   893;  16  W.  E.  796;   12  Jur. 

(N.  S.)  727  ;  2  Mar.  L.  Cas.  362  ;  3  Mar.  L.  Cas.  77     32 

Guthrie  v.  North  China  Ins.  Co.,  6  Com.  Cas.  25  ;  7  Com.  Cas. 

130  ;  17  T.  L.  E.  79  ;  18  T.  L.  E.  412 215 


H. 

H.  M.  Hayes,  The,  Lush.  355 ;  5  L.  T.  37 177 

Hadlev  v.  Baxeadale,  9  Exch.  341  ;  23  L.  J.  Ex.  179  ;   18  Jur.  358  ; 

2  C.^L.  E.  517  ,  2  W.  E.  302  ;  23  L.  T.  (0.  S.)  69  ;  96  E.  E.  742.  .  40 
Hall  V.  Janson,  4  E.  &  B.  500  ;  24  L.  J.  Q.  B.  97  ;  2  C.  L.  E.  737  ; 

1  Jur.  (N.  S.)  571  ;  3  W.  E.  213  ;  99  E.  E.  578 239,  241,  370 

Hallett  V.  Boustield,  18  Yes.  187  ;   11  E.  E.  184     390 

Hallett  V.  Wigram,   9  C.  B.  580;   19  L.  J.  C.  P.  281  ;  82  E.  E. 

450  23,99,  196 


XXU  LIST  OP  CASES. 

PAGE 

Hamburg,  The,  Br.  &  Lush.  253  ;  32  L.  J.  Adm.   161  ;  33  L.  J. 

Adm.  116;  2Moo.  P.C.  0.  (N.S.)289;    lOL.  T.  206;   12W.E. 

628  ;    10  Jur.  (N.  S.)  600    29,  329,  332 

Hamel  v.  P.  &  0.  Steam  Nav.  Co.,  [1908]  2  K.  B.  298  ;  77  L.  J. 

K.  B.  637  ;  98  L.  T.  861  ;  24  T.  L.  E.  535  ;   13  Com.  Cas.  270  ; 

11  Asp.  M.  C.  71 101,  251,  253,  259,  260 

Hansard  v.  Eobinson,  7  B.  &  C.  90 ;  By.  &  M.  404,  n. ;  9  Dowl.  & 

E.  860  ;  5  L.  J.  (0.  S.)  K.  B.  242  ;  31  E.  E.  166 381 

Hansen  v.  Dunn,  11  Com.  Cas.  100  ;  22  T.  L.  E.  458  274,  275 

Harmonides,  The,  [1903]  P.  1  ;  72  L.  J.  P.  9  ;  51  W.  E.  303 ;  87 

L.  T.  448  ;  19  T.  L.  E.  37  ;  9  Asp.  M.  C.  354  352 

Harris  v.  Moody,  30  N.  Y.  266 746 

Harrison  v.  Bank  of  Australasia,  L.  E.  7  Ex.  39  ;  41  L.  J.  Ex.  36  ; 

25  L.  T.  944;  20  W.  E.  385;   1  Asp.  M.  C.  198.  .43,  44,  47,  95,  239 

Hathaway  v.  Sun  Ins.  Co.,  8  Bosw.  33     759 

Henderson  v.  Shankland,  [1896]  1  Q.  B.  525  ;   65  L.  J.  Q.  B.  340  ; 

74  L.  T.  238  ;  44  W.  E.  401  ;   1    Com.  Cas.  252,  333  ;  8  Asp. 

M.  C.  136 (348 

Hennen  v.  Monroe,  8  Martin  (La.)  227     747 

Heye  r.  North  German  Lloyd,  33  Fed.  E.  60  ;  36  Fed.  E.  705    .  .  104, 

106,  379,  748 

Heyliger  v.  N.  Y.  F.  Ins.  Co.,  11  Johns.  E.  85 747 

Hicks  V.  Paliugton,  Moore's  (Q.  B.)  E.  297    18,  103 

Hicks  V.  Shield,  7  E.  &  B.  633  ;  26  L.  J.  Q.  B.  205  ;  3  Jur.  (N.  S.) 

715  ;  5  W.  E.  536  ;  29  L.  T.  (0.  S.)  106  ;   110  E.  E.  762     ....    372 
Hill  V.  Wilson,  4  C.  P.  D.  329  ;  48  L.  J.  C  P.  764 ;  41  L.  T.  412  ; 

4  Asp.  M.  C.  198  276,  S95,  297 

Hiugston  t'.  Wendt,  1  Q.  B.  D.  367  ;  45  L.  J.  Q.  B.  440  ;  34  L.  T. 

664 ;  24  W.  E.  664  ;  3  Asp.  M.  C.  126     384 

Hobson  V.  Lord,  92  U.  S.  (Sup.  Ct.)  397.  .728,  742,  760,  761,  769,  770 
Homer  Eamsdell  Trans.  Co.  v.  La  Compagnie  Generale  Trans- 

atlantique,  182  U.  S.  (Sup.  Ct.)  406 736 

Hopper  V.  Burness,  I  C.  P.  D.  137  ;  45  L.  J.  C.  P.  377  ;  34  L.  T. 

528  ;  24  W.  E.  612  ;  3  Asp.  M.  C.  149     ...  .276,  323,  325,  327,  328 

Hugg  V.  Baltimore  &  Cuba  S.  &  M.  Co.,  35  Md.  414 757,  758 

Hurlbut  V.  Turnure,  81  Fed.  E.  208 747 

Huth  V.  Lamport,  16  Q.  B.  D.  442  ;  55  L.  J.  Q.  B.  239  ;   54  L.  T. 

334,  663  ;   34  W.  E.  386  ;  5  Asp.  M.  C.  543,  593  ....  386,  397,  400, 

403,  775 

I. 

India,  The,  1  W.  Eob.  406     181 

Industrie,  The,  [1894]   P.  ,58  ;  63  L.  J.  Adm.  84  ;  6  E.  681  ;  70 
L.  T.  791  ;  42  W.  E.  280  ;  7  Asp.  M.  C.  457    276,  278 


LIST  OF  CASES.  XXlll 

PAGE 

Internationale  Guano  en  Superphosphaatwerken  v.  Macandrew, 
[1909]  2  K.  B.  360  ;  78  L.  J.  K.  B.  691  ;  100  L.  T.  850;  5.'5 
S.  J.  504  ;  25  T.  L.  E.  529  ;  14  Com.  Cas.  194  ;  11  Asp.  M.  C. 
271 217 

Iredale  r.  China  Traders'  Ins.  Co.,  [1899]  2  Q.  B.  35;  [1900]  2 
Q.  B.  515  ;  68  L.  J.  a  B.  1021  ;  69  L.  J.  Q.  B.  783  ;  81  L.  T. 
231  ;  83  L.  T.  299  ;  4  Com.  Cas.  256  ;  5  Com.  Cas.  337  ;  9  Asp. 
M.  C.  119;   16  T.  L.  E.  484     106,  125,  154 

Ironsides,  The,  Lush.  458  ;  31  L.  J.  Adm.  129  ;   6  L.  T.  59 407 

Irrawaddy,  The,  82  Fed.  E.  472  ;  88  Fed.  E.  987  ;  171  U.  S.  187 .  . 

38,  782 

Isabella,  The,  3  Hagg.  427    179 


J. 

Jackson  v.  Isaacson,  3  H.  &  N.  405  ;  27  L.  J.  Ex.  392  ;   117  E.  E. 

757 372 

Jason,  The,  162Fed.  E.  56;  178  Fed.  E.  414  ..  38,  175,733,  736,746,749 
Job  V.  Langton,  6  E.  &  B.  779  ;  26  L.  J.  Q.  B.  97  ;  3  Jur.  (N.  S.) 

109  ;  4  W.  E.  641  ;    106  E.  E.  797    22,  188,  193,  195,  196,  197, 

203,  205 

John,  The,  3  W.  Eob.  171 371 

Johnson  v.  Chapman,  The,  19  C.  B.  (N.  S.)  563  ;  35  L.  J.  C.  P. 

23;  15  L.  T.  70;  14  W.  E.  264..  23,  36,  64,  65,  72,  78,  79,  80,  119, 

120,  122,  133,  736 

Jonge  Bastiaan,  The,  5  C.  Eob.  322 181 

Jorgensen  r.  Neptune  Steam  F.  Co.,  39  Sc.  L.  E.  765  ;  [1902]  4 

Ct.  of  Sess.  Cas.  (5th  Ser.)  992 183 

Joseph  Farwell,  The,  31  Fed.  E.  844    740,  750,  7(50 

Joseph  Thorley,  Ltd.  v.  Orchis  S.S.  Co.,  [1907]  1  K.  B.  243,  660  ; 

76  L.  J.  K.  B.   106,  595  ;  96   L.  T.   488  ;  23  T.  L.  E.  89,  338; 

12  Com.  Cas.  51,  251  ;  51  S.  J.  289  ;   10  Asp.  M.  C.  431 217 

J.  P.  Donaldson,  The,  167  U.  S.  599    726 

Julia  Blake,  The,  107  U.  S.  418     728,  752,  763 


K 

Karnak,  The,  L.  E.  2  A.  &  E.  289;  L.  E.  2  P.  C.  505  ;  37  L.  J. 

Adm.  41  ;  38  L.  J.  Adm.  57  ;  18  L.  T.  661  ;  21  L.  T.  159  ;  17 

W.  E.  1028  ;  6  Moo.  P.  C.  C.  (N.  S.)  136  ;  3  Mar.  L.  Cas. 

103,  276 370,  372 

Kasan,  The,  Br.  &  Lush.  1  ;  32  L.  J.  Adm.  97;  9  Jur.  (N.  S.) 

234 407 


XXIV  LIST  OF  CASES. 

PAGK 

Kathleen,  The,  L.  E.  4  A.  &  E.  269  ;  43  L.  J.  Ad.  39 ;  31  L.  T. 

204  ;  23  W.  E.  350  ;  2  Asp.  M.  C.  367  214 

Kemp  V.  Halliday,  6  B.  &  S.  723  ;  L.  E.  1  Q.  B.  520  ;  34  L.  J. 

Q.  B.  233  ;  35  L.  J.  Q.  B.  156  ;  13  L.  T.  256  ;  14  L.  T.  762  ; 

14  W.  E.  697;  12  Jur.  (N.  S.)  582;  2  Mar.  L.  Cas.  271, 

370  .  23,  176,  187,  201 

Kerford  v.  Mondel,  28  L.  J.  Ex.  303 ;   1 18  E.  E.  908    386 

King  V.  Zimmerman,  L.  E.  6  C.  P.  466  ;  40  L.  J.  C.  P.  278  ;  24 

L.  T.  623  ;   19  W.  E.  1009 382 

Kirkhall,  The,  99  Fed.  E.  575  745 

Kish  V.   Taylor,  [1910]  2  K.  B.  309;  [1911]  1  K.  B.  625;  79 

L.  J.  K.  B.  1113  ;  80  L.  J.  K.  B.  601  ;  102  L.  T.  910  ;  103 

L.  T.  785  ;  54  S.  J.  565 ;  15  Com.  Cas.  268  ;  16  Com.  Cas.  59  ; 

26  T.  L.  E.  504;  27  T.  L.  E.  174;  11  Asp.  M.  C.  544 217 

Klein  V.  Lindsay,  [1910]  Sess.  Cas.  231 38,  328 

Knight  r.  Faith,  15  Q.  B.  649 ;   19  L.  J.  Q.  B.  509 ;   14  Jur.  1114  ; 

81  E.  E.  725     263 

Kopitoff  V.  Wilson,  1  Q.  B.  D.  377  ;  45  L.  J.  Q.  B.  436 ;  34  L.  T. 

677  ;  24  W.  E.  706  ;  3  Asp.  M.  C.  163     33 


Lady  Egidia,  The,  Lush.  513     179 

Laertes,  Cargo  ex,  12  P.  D.  1S7  ;  57  L.  J.  Adm.  108  ;  57  L.  T. 

502  ;  36  W.  E.  Ill  ;  6  Asp.  M.  C.  174    35 

L'Amerique,  35  Fed.  E.  835   739,  752,  776 

Lateward  v.  Curling,  Park,  Ins.  (8th  ed.)  115    280 

Lawrence  v.  Minturn,  17  How.  100     44,  755 

Learoyd  v.  Whiteley,   12  App.  Cas.  727  ;  57  L.  J.  Ch.  390  ;  58 

L.  T.  93  ;   36  W.  E.  721 404 

Leavenworth  v.  Delafield,  1  Caines,  573 770 

Lebeau  v.  Gren.  Steam  Nav.  Co.,  L.  E.  8  C.  P.  88  ;  42  L.  J.  C.  P. 

1  ;  27  L.  T.  447  ;  21  W.  E.  146  ;   1  Asp.  M.  C.  435 336 

Lee  r.  Grinnell,  12  N.  Y.  Sup.  Ct.  (5  Duer),  400    768,  769,  770 

Lee  v.  Southern  Ins.  Co.,  L.  E.  5  C.  P.  397  ;  39  L.  J.  C.  P.  218  ; 

22  L.  T.  443  ;   18  W.  E.  863    , 363,  268 

Leitrim,  The,  [1902]  P.  256  ;  71   L.  J.  P.  108  ;  87  L.  T.  240;   18 

T.  L.  E.  819  ;  51   W.  E.   158  ;  8  Com.  Cas.  6  ;  9  Asp.  M.  C. 

317 21,  281,  282,  337,  341 

Lewis  V.  Williams,  1  Hall  (N.  Y.),  430   747 

Lidgett  t'.  Secretan,  L.  E.  6  C.  P.  616;  40  L.  J.  C.  P.  257;  24 

L.  T.  942  ;   19  W.  E.  1088  ;    1  Asp.  M.  C.  95 '.  .  .    263 


LIST  OF  CASES,  XXV 

PAGE 

Lindsay  v.  Klein,  [1911]  A.  C.  194  :  80  L.  J.  P.  C.  161  ;  104  L.  T. 

261 35 

Lloyd  i'.  Guibert,  L.  E.    1    Q.  B.  115;  6  B.  &  S.    100;  33  L.   J. 

Q.  B.  241  ;   35  L.  J.  Q.  B.  74  ;   10  L.  T.   570  ;   13  L.  T.   602  ; 

12  W.  E.  593  ;  2  Mar.  L.  Cas.  260,  283 277,  278,  292,  293, 

329,  332 

M. 

McAndrewst'.  Thatcher,   1   Wallace  (U.  S.  Sup.  Ct.),   347..  199,  739, 

749,  750,  751,  752,  753,  754,  776 
McCall  V.  Houlder  Bros.,  66  L.  J.  Q.  B.  408  ;    76   L.  T.  469  ; 

13  T.  L.  E.  280  ;  2  Com.  Cas.  129  ;  8  Asp.  M.  C.  252   41,  99, 

100,  102 
McFadden  v.   Blue  Star  Line,  [1905]  1  K.  B.  697  ;  74  L.  J. 

K.  B.  423  ;  53  W.  E.  576  ;  93  L.  T.  52  ;  21  T.  L.  E.  345  ;  10 

Com.  Cas.  123  ;  10  Asp.  M.  C.  55 33 

Mclver  v.  Tate  Steamers,  [1903]  1   K.  B.  362;    72  L.  J.  K.  B. 

25,3;  88L.  T.  182;  51W.E.393;   18T.L.E.  379;   19T.L.E. 

217  ;  8  Com.  Cas.  124  ;  9  Asp.  M.  C.  362    34 

McLoon  V.  Cummings,  75  Penn.  S.  T.  Eep.  98   764 

Maggrath  v.  Church,  1  Caines's  N.  Y.  Eep.  176  ...  .82,  102,  720,  748 

Maldonado  v.  B.  &  F.  Mar.  lus.  Co.,  182  Fed.  E.  784     768,  772 

Manfield  v.  Maitland,  4  B.  &  Aid.  582  ;  23  E.  E.  402   371 

Margarethe  Blanca,  The,  12  Fed.  E.  728 ;  14  Fed.  E.  59 743 

Mark  Lane,  The,  15  P.  D.  135  ;    63  L.  T.  468 ;    39   W.  E.  47  ;  6 

Asp.  M.  C.  540 176 

Marsham  v.  Dutrey,  Select  Cases  of  Evidence,  58 18 

Martin  v.  The  Agathe,  71  Fed.  E.  528 777 

Marwick  v.  Eogers,  163  Mass.  50     31,  773,  776 

Mary,  The  Brig,  1  Sprague,  17 746,  748,  761,  772 

Mary  Gibbs,  The,  22  Fed.  E.  463 743 

Mary  Thomas,  The,  [1894]  P.  108  ;    63  L.  J.  Adm.  49  ;  71  L.  T. 

104  ;  6  E.  792  ;  7  Asp.  M.  C.  495     313 

Mary  V.  Hugg,  The.     (See  Hugg  v.  Baltimore  and  Cuba  S.  tt  M. 

Co.) "^57,  758 

Matthews  v.   Gibbs,  3  E.  &  E.  282 ;  30  L.  J.  Q.  B.  55 ;  7  Jur. 

(N.  S.)  186  ;  3  L.  T.  551  ;  9  W.  E.  200  ;  122  E.  E,  697 275 

Mavro  v.  Ocean  Mar.  Ins.  Co.,  L.  E.  9  C.  P.  595  ;  L.  E.  10  C.  P. 

414  ;  43  L.  J.  C.  P.  339  ;  44  L.  J.  C.  P.  329  ;  31  L.  T.  186  ;  32 

L.  T.  743  ;  23  W.  E.  758  ;  2  Asp.  M.  C.  590  273,  294,   ^'J6 

May  V.  Keystone  Yellow  Pine  Co.,  117  Fed.  E.  287  ....  127,  743,  761 
Medina,  The,  1  P.  D.  272  ;  2  P.  D.  5  ;  45  L.  J.  Adm.  81  ;  35  L.  T. 

779  ;  25  W.  E.  156 ;  3  Asp.  M.  C.  305     176 


XXVI  LIST  OF  CASES. 

PAGE 

Metcalf  V.  Britannia  Ironworks  Co.,  1   Q.  B.  D.  G13;   2  Q.  B.  D. 

423;  4(5  L.  J.  Q.  B.  443;  36  L.  T.  451  ;   25  W.  E.  720  ;   3  Asp. 

M.  0.  407 276 

Miedbrodt  v.  Fitzsimon,  L.  R.  6  P.  C.  306 ;  44  L.  J.  Adm.  25  ;  32 

L.  T.  579 ;  23  W.  E.  932  ;  2  Asp.  M.  C.  555 888 

Milburn  v.  Jamaica  Fruit  Co.,  [1900]  2  Q.  B.  540  ;  69  L.  J.  Q.  B. 

860  ;  83  L.  T.  321  ;    15  T.  L.  E.  512  ;    16  T.  L.  E.  515  ;  4  Com. 

Cas.  331  ;  5  Com.  Cas.  346;  9  Asp.  M.  C.  122    30,  31,  37,  39 

Miller  r.  Titherington,  6  H.  &  N.  278  ;   7  H.  &  N.  954  ;    30  L.  J. 

Ex.  217;  31  L.  J.  Ex.  363;  3  L.  T.  893 ;   9  L.  T.  231  ;  9  ^Y.  E. 

437  ;  10  W.  E.  356  ;  7  Jur.  (N.  S.)  214  ;  8  Jur.  (N.  S.)  1039  ; 

123  E.  E.  503,  512 63 

Milward  v.  Hibbert,  3  Q.  B.  120  ;  2  G.  &  D.  142  ;   11  L.  J.  Q.  B. 

137;  6  Jur.  706;   61  E.  E.  155 62 

Minneapolis,  &c.  S.S.   Co.  v.  Manistee  Transit  Co.,  156  Fed.  E. 

424 51,  725 

Minnehaha,  The,  Lush.  335  ;  15  Moo.  P.  C.  C.  133  ;  30  L.  J.  Adm. 

211  ;  4  L.  T.  810  ;  9  W.  E.  925  ;  7  Jur.  (N.  S.)  1257  ;  1  Mar. 

L.  Cas.  Ill 179,  180 

Missouri  S.S.  Co.,  In  re,  42  Ch.  D.  321  ;  58  L.  J.  Ch.  781  ;  58 

L.  T.  377;  61  L.  T.  316;  37  W.  E.  696;  6  Asp.  M.  C.  264, 

423 277 

Mitchell  Trans.  Co.  v.  Patterson,  22  Fed.  E.  49 773 

Moeller  v.  Young,  5  E.  &  B.  7,  775  ;  24  L.  J.  Q.  B.  217  ;  25  L.  J. 

Q.  B.  94  ;  26  L.  T.  (0.  S.)  183  ;   3  W.  E.  421  ;  4  W.  E.  149  ;    1 

Jur.  (N.  S.)  934  ;  2  Jur.  (N.  S.)  393  ;  103  E.  E.  716,  725  386 

Montgomery  v.  Indemnity  Mutual  Mar.  Ins.  Co.,  [1901]  1  Q.  B. 

147;  [1902]  1  K.  B.  734  ;  70  L.  J.  Q.  B.  45  ;  71  L.  J.  K.  B. 

457;  84  L.  T.  57  ;  86  L.  T.  462  ;  49  W.  E.  221  ;  50  W.  E. 

440  ;  17  T.  L.  E.  59  ;  18  T.  L.  E.  479  ;  6  Com.  Cas.  19  ;  7  Com. 

Cas.  120;  9  Asp.  M.  C.  141,  289 25,  127,  355,  359 

Moran  v.  Jones,  7  E.  &  B.  523  ;  26  L.  J.  Q.  B.  187  ;  3  Jur.  (N.  S.) 

663;  5  W.  E.  503;  110  E.  E.  710 190,  194,  195,  196,  197,  205, 

211,  359,  365 
Mors  Le  Blanch  r.  AVilson,  L.  E.  8  C.  P.  227  ;  42  L.  J.  C.  P.  70 ; 

28  L.  T.  415  ;   1  Asp.  M.  C.  605     386 

Moss  V.  Smith,  9    C.  B.   94;    19  L.  J.   C.    P.  225;    14   Jur.    1003; 

82  E.  E.  307 272,  273 

Mouse's  Case,  12  Coke,  E.  63 26,  51,  -55 

Mulhouse,  The,  Fed.  Cas.  9910     754 

Mutual  Ins.  Co.  v.  (Cargo)  Brig  George,  Olcott,  89,  157    .  .  .  .749,  768 


LIST  OF  CASES.  XXVll 

N. 

PAGE 

Nathaniel   Hooper,    The,    3    Sumner,   542;    Fed.,   Cas.    10,032.. 

727,  749,  768 

National  Board  of  Marine  Underwriters  v.  Melchers,  45  Fed.  E. 

643 "^^^ 

Nelson  V.   Belmont,   12   N.  Y.  Sup.  Ct.   (5  Duer)  310;  21  N.  Y. 

3Q    740,  742,  746,  768 

Nelson  Line  v.  James  Nelson  &  Sons,  Ltd.,  [1907]  2  K.  B.  705; 

[1908J  A.  0.  108 ;  76  L.  J.  K.  B.  531  ;  77  L.  J.  K.  B.  456  ;  98 

L.  T.  322;  23  T.  L.  E.  656;  24  T.  L.  E.  315;   12  Com.  Cas. 

185;   13  Com.  Cas.  235;   11  Asp.  M.  C.  1     34 

Nesbitt  v.  Lushington,  4  T.  E.  783  ;  2  E.  E.  518 43 

Newall  V.  Eoyal  Exchange  Shipping  Co.,  33  W.  E.  868    71 

New  York  and  Cuba  Mail  S.S.  Co.  v.  Eeliauce  Mar.  Ins.  Co.,  70 

Fed.  E.  262;  77Fed.  E.  317;  165  U.  S.  720.  ..  .740,  742,  746,  750 

Nicholson  r.  Chapman,  2  H.  Bl.  254  ;  3  E.  E.  374    386 

Niniick  V.  Holmes,  25  Penns.  Eep.  366  ;  4  Asp.  M.  C.  392.  .  .  -85,  90 

742,  746,  /68 

Nobel's  Explosives  Co.  v.  Eea,  2  Com.  Cas.  293    394 

Norma,  The,  Lush.  124  ;  3  L.  T.  340  ;   1  Mar.  L.  Cas.  528 310 

North  Star,  The,  Lush.  45  ;  29  L.  J.  Adm.  73  ;   2  L.  T.  21G 404 

Norway,  The,  Br.  &  Lush.  226,  377,  404  ;  2  Mar.  L.  Cas.  17,  168, 

254;   lOL.  T.40;   12  L.  T.  57  ;  13  L.  T.  50.  .35,  340,  386,  400, -108 
Norwich  and  N.  Y.  Transport  Co.  v.  Ins.  Co.  of  North  America 

(The  City  of  Worcester),  US  Fed.  E.  307  ;  129  Fed.  E.  1006  ; 

194  U.  S.  637  155,  Tdl,  741,  748 

Notara  v.   Henderson,  L.  E.  5  Q.  B.  346  ;  L.  E.  7  Q.  B.  225  ;  41 

L.  J.  Q.  B.  158  ;  22  L.  T.  557  ;  26  L.  T.  442  ;  20  W.  E.  442  ; 

3  Mar.  L.  Cas.  419  ;  1  Asp.  M,  C.  278  '-^00 

Nottiug  Hill,  The,  9   P.  D.  105;  53  L.  J.  Adm.  56;   51  L.  T.  66; 

32  W.  E.  746  ;  5  Asp.  M.  C.  241 40,  254 


0. 

Ocean  Steamship  Co.  v.  Anderson,  13  Q.  B.  D.  651  ;  10  App.  Cas. 

107  ;   54    L.  J.  Q.  B.  192  ;  52   L.   T.  441  ;   33  W.   E.    433,  536  ; 

5  Asp.  M.  C.  401 24,  176 

Olivari  v.  Thames  and  Mersey  ]\Iar.  Ins.  Co.,  45  Fed.  E.  894 763 

Osgood  1-.  Groning,  2  Camp.  466  ;   1 1  E.  E.  765     '■276 

Owners  of  Cargo  ex  Maori  King  v.  Hughes,  [1895]  2  Q.  B.  550  ; 

61  L.  J.  Q.  B.  744  ;  73  L.  T.  141  ;  1  Com.  Cas.  104  ;    14  E.  646  ; 

44  W.  E.  2  ;  8  Asp.  M.  C.  65     33 


XXVlll  LIST  OF  CASES. 


P. 

PAGE 

Paciac,   The,   [1898]  P.    170;  67  L.  J.  Adm.  Go;  46  W.  R.  686; 

79  L.  T.  125 :  8  Asp.  M.  C.  422 183 

Pacific  Mail  S.S.  Co.  v.  Dupre  et  als.,  74  Fed.  P.  250   747 

Pacific  Mail  S.S.  Co.  v.  N.  Y.  H.  &  E.  Mining  Co.  (The  City  of 

Para),  69  Fed.  E.  414  ;  74  Fed.  E.  564     93,  730,  740,  746,  754 

Packet,  The  Ship,  3  Mason,  261  ;  Abbott,  Ship.  (Amer.  ed.)  487..  777 

Papayanni  v.  Grampian  S.S.  Co.,  1  Com.  Cas.  448     ^9,  93,  159, 

166,  726 
Parlement  Beige,  The,  4  P.  D.  129  ;  5  P.  D.  197,  218  ;  42  L.  T. 

273  ;  28  W.  E.  642 ;  5  Asp.  M.  C.  83,  234 375 

Patria,  The,  L.  E.  3  A.  &  E.  436  ;  41   L.  J.  Adm.  32  ;  24  L.  T. 

849  ;    1  Asp.  M.  C.  71 407 

Pericles,  The,  Br.  &  Lush.  80     1 79 

Peters  v.  Milligan,  1  Park  (8th  ed.),  296 380 

Peters  v.  Warren  Ins.  Co.,  3  Sumner,  393  ;  14  Peters'  S.  C.  E.  99  . .  763 
Phantom,  The,  L.  E.  1  A.  &  E.  58 ;  14  W.  E.  774;  12  Jur.  (N.  S.) 

529  ;  2  Mar.  L.  Cas.  442     177 

Phelps  V.  Hill,  [1891J  1  Q.  B.  605  ;  60  L.  J.  Q.  B.  382  ;  64  L.  T. 

610 ;   7  Asp.  M.  C.  42 .    258 

Phipps  V.  The  Nicanor,  44  Fed.  E.  504    777 

Pieve  Superiore,  The,  L.  E.  4  A.  &  E.  170  ;  L.  E.  5  P.  C.  482 ;  43 
L.  J.  Adm.  20;  30  L.  T.  887;  22  W.  E.  777;  2  Asp.  M.  C. 

319 406,  407 

Pirie  v.  Middle  Dock  Co.,  4  Asp.  M.  C.  388  ;  44  L.  T.  426   24,  28, 

80,  88,  89,  108,  225,  325 

Pirie  v.  Steel,  2  M.  &  Eob.  49 ;  8  C.  &  P.  200  ;  56  E.  E.  840 345 

Pitman  v.   Universal  Mar.  Ins.  Co.,  9  Q.  B.  D.   192;  51  L.  J. 
Q.  B.  561  ;  46  L.  T.  863  ;   30  W.  E.  906  ;  4  Asp.  M.  C.  544    .  .    263 

Plummer  v.  Wildman,  3  M.  &  S.  482 ;  16  E.  E.  334 220,  241 

Poingdestre  v.  Eoyal  Exchange  Ass.  Co.,  Ev.  &M.  378  ;  27  E.  E. 
759 " 345 

Potter  V.  Ocean  Ins.  Co.,  3  Sumner,  27 739 

Potter  V.  Eankin,  L.  E.  3  C.  P.  562 ;  L.   E.  5  C.  P.  341  ;  L.  E.  6 
H.  L.  83  ;  42  L.  J.  C.  P.  169  ;  29  L.   T.  142  ;  22  W.  E.   1  ;   2 

Asp.  M.  C.  65    359^  362,  363,  364,  366 

Power  V.  Whitmore,  4  M.  &  S.  141  ;   16  E.  E.  416     280 

Price  V.  Noble,  4  Taunt.  123 ;  13  E.  E.  566     48,  o7,  112 

Princess  Alice,  The,  3  W.  Eob.  138 179 

Progress,  The,  Edw.  221     311 


LIST  OF  CASES.  XXIX 

E. 

PAGK 

Raikes,  The,  1  Hagg.  Adm.  246   180 

Eaisby,  The,  10  P.  D.  114;  o4  L.  J.  Adm.  65  ;  53  L.  T.  56;  33 

W.  E.  938  ;  5  Asp.  M.  C.  473 175 

Ealli  r.  Troop,  157  U.  S.  386 51,  720,  725,  742,  773 

Eamuz  v.  Crowe,  1  Exch.  167  ;   10  L.  J.  Ex.  280  ;   11  Jur.  715  ;  74 

E.  E.  628 381 

Eankin  v.  Potter,  L.  E.  3  C.  P.  562  ;  L.  E.  5  C.  P.  341  ;  L.  E.  6 

H.   L.  83  ;  42  L.  J.   C.   P.  169  ;  29  L.  T.  142  ;  22  W.  E.  1  ;   2 

Asp.  M.  0.  65 359,  362,  363,  364,  366 

Eapid  Transit,  The,  52  Fed.  E.  320 734,  746 

Eathbone  r.  Mclver,  [1903]  2  K.  B.  378  ;  72  L.  J.  K.  B.  703  ;  52 

W.  E.  68  ;  89  L.  T.  378  ;   19  T.  L.  E.  590  ;   8  Com.  Cas.  1,  303  ; 

9  Asp.  M.  C.  467 34 

Eea  V.  Cutler,  1  Sprague,  135 155,  741 

Eed  Sea,  The,  [1895]  P.  293  ;  [1896]  P.  20  ;  65  L.  J.  Adm.  9  ;  73 

L.  T.  462  ;  44  W.  E.  306  ;  8  Asp.  M.  C.  102 372 

Eeg.  V.  City  of  London  Court  Judge,    12  Q.  B.  D.    115  ;  53  L.  J. 

Q.  B.  28  ;  51  L.  T.  197  ;  32  W.  E.  291  ;  5  Asp.  M.  C.  283  ...  .    409 
Eeliaiice  Mar.  Ins.  Co.  v.  N.  Y.  &  C.  Mail  S.S.  Co.,  70  Fed.  E. 

262  ;  77  Fed.  E.  317  ;  165  U.  S.  720 94,  740,  742,  746,  750 

Eichardson  v.  Nourse,  3  B.  &  Aid.  237  ;  22  E.  E.  368    321,  326 

Eisley  v.  Ins.  Co.  of  North  America,  189  Fed.  E.  529   739 

Eoauoke,  The,  46  Fed.  E.  297  ;  53  Fed.  E.  270;  59  Fed.  E.  161  .  .31, 

88,  725,  734 

Eoberts  v.  The  Ocean  Star,  Fed.  Cas.  11908 741,  760 

Eobertsou  v.  Ewer,  1  T.  E.  127  ;   1  E.  E.  164     280 

Eobiuson  V.  Price,    2  Q.  B.  D.    91,    295  ;  46   L.  J.  Q.  B.   551  ;  36 

L.  T.  354  ;  25  W.  E.  469  ;  3  Asp.  M.  C.  321,  407  ..  .  .36,  43,  96,  98 
Eodocanachi  v.  Milburn,    17   Q.  B.  D.   316;   18   Q,  B.  D.   67  ;  56 

L.  J.  Q.  B.    202;  56  L.  T.    594;  35  W.  E.   241  ;  6   Asp.  M.  C. 

100    337 

Eogers  v.  Mechanics  Ins.  Co.,  1  Storey,  604;  2  Storey,  173  .  .741,  765 

Eonalds  v.  Leiter,  109  Fed.  E.  905   759 

Eose  V.  Bank  of  Australasia,    [1894]  A.  C.   687;  63  L.  J.  Q.  B. 

504 ;  70  L.  T.  422 ;  6  E.  121  ;  7  Asp.  M.  C.  445     ....  209,  212,  213 
Eosetto  V.  Gurney,  11  C.  B.  176  ;  20  L.  J.  C.  P.  257  ;   15  Jur.  1 177  ; 

17  L.  T.  (0.  S.)  242  ;  87  E.  E.  629 246 

Eowson  V.  Atlantic  Transport  Co.,  [1903]  1  K.  B.    114  ;  [1903]  2 

K.  B.  660;  72L.J.  K.  B.  87,  811;  52  VV.  E.  85;  87L.T.  717; 

89  L.  T.  204  ;  19  T.  L.  E.  67,  668  ;  8  Com.  Cas.  74  ;  9  Com.  Cas. 

38 ;  9  Asp.  M.  C.  347,  458 39 

Eoyal  ExchaDge  S.  Co.  v.  Dixon.     (See  Dixon  v.  Royal  Exchanye 

S.  Co.)     71,77 


XXX  LIST  OF  CASES. 

PAGE 

Eoyal  Mail  S.  P.  Co.  r.  English  Bank  of  Rio  Janeiro,  19  Q.  B.  D. 

362  ;   57  L.  J.  Q.  B.  31  ;  36  ^Y.  R.  105  .  .99,  100,  188,  198,  204,  205 
Eoyal  Sceptre,  The,  187  Fed.  R.  224    736 


S. 

Sailing  Ship  Garston  Co.  v.  Hickie,  18  Q.  B.  D.  17  ;  56  L.  J.  Q.  B. 

38  ;  55  L.  T.  879  ;  35  W.  R.  33  ;  6  Asp.  M.  C.  71     36 

St.  Paul,  The,  82  Fed.  E.  104  ;  86  Fed.  R.  340 754 

Samuel,  The,  16  Jur.  407   181 

San  Fernando  v.  Jackson,  12  Fed.  R.  341     ,    773 

Santa  Ana,  The,  154  Fed.  R.  800 394,  734,  777 

Santa  Anna  Maria,  The,  49  Fed.  R.  878   740,  777 

Sarpedon,  Cargo  ex,   3  P.  D.  28  ;  37  L.  T.  505  ;  26  W.  R.  374  ; 

3  Asp.  M.  C.  509 183 

Scaife  v.  Tobin,  3  B.  &  Ad.  523  ;  1  L.  J.  K.  B.   183  ;  37  R.  R. 

500 385,  389 

Scarfe  v.  Morgan,  4  M.  &  W.  270  ;   1   H.  &  H.  292  ;   7  L.  J.  Ex. 

324  ;  2  Jur.  569  ;  51  R.  R.  568 386 

Schiller,  Cargo  ex,  1   P.  D.  473;  2  P.  D.  145  ;  46  L.  J.  Adm.  9  ; 

35  L.  T.  97  ;  36  L.  T.  714  ;  3  Asp.  M.  C.  226,  439    183 

Schloss  V.  Heriot,  14  C.  B.  (N.  S.)  59  ;  32  L.  J.  C.  P.  21 1  ;  8  L.  T. 

246  ;  11  W.  R.  596  ;  10  Jur.  (N.  S.)  795  ;  I  Mar.L.  Cas.  246  .  35 
Schmidt  V.  Royal  Mail  S.S.  Co.,  45  L.  J.  Q.  B.  646 ;  4  Asp.  M.  C. 

217,  n 87,  88,  393 

Schooner  Wm.  J.  QuiUan,  The,  168  Fed.  R.  407;  175  Fed.  R. 

207  ;  180  Fed.  R.  681  730,  731 

Schuster  v.  Fletcher,  3  Q.  B.   D.   418;  47  L.  J.   Q.   B.  530;  26 

W.  R.  756  ;  38  L,  T.  605  ;  3  Asp.  M.  C.  577 213 

Shand  v.  Ash,  N.  P.,  Mitch.  Mar.  Reg.  1872,  p.  242 98 

Shannon,  The,  11  Jur.  1045 178 

Shepherd  r.  Kottgen,  2  C.  P.  D.  578,  585  ;  47  L.  J.  C.  P.  67;  37 

L.  T.  618  ;  26  W.  R.  120 ;  3  Asp.  M.  C.  544     86,  120,  ISl, 

129,  130,  139,  140,  147,  165 

Sheppard  v.  Wright,  1  Show.  P.  C.  18 18,  384 

Shipton  V.  Thornton,  9  A.  &  E.  314 ;   1  P.  &  D.  216  ;   8  L.  J.  Q.  B. 

73;  48  R.  R.  507 210,  247,  275,  297 

Shoe  V.  Craig,  189  Fed.  R.  227 745 

Shoe  V.  Low  Moor  Iron  Co.,  46  Fed.  R.  125  ;  49  Fed.  R.  252.  .157,  742 
Silesia,  The,  5  P.  D.   177  ;  43  L.  T.  319;   29  W.  R.  156;  4  Asp. 

M.  C.  338 176 

Simonds  v.  White,  2  B.  &  C.  805  ;  4  Dow.  &  Ry.  375  ;  2  L.  J. 

(0.  S.)  K.  B.  159  ;  26  R.  R.  560     29,  222,  244,  S90,  314,  398 


LIST  OF  CASES.  XXXI 

PAGE 

Simpson  r.  Blues,  (The  Madge  AVildfire),  L.  E.  7  C.  P.   290;  41 

L.  J.  C.  r.  121  ;  26  L.  T.  697  ;   20  W.  R.  680     409 

Sims  V.  Gurney,  4  Binney's  (Penns.)  Eep.  313     150,  741 

Sims  V.  AVilling,  8  Serg.  &  Rawle,  103     701 

Slater  v.  Hay  ward  Eubber  Co.,  26  Conn.  128    94,  158,  745,  768 

Sleigh  V.  Tyser,  [1900]  2  Q.  B.  333  ;  69  L  J.  Q.  B.  626  ;  82  L.  T. 

804  ;    16  T.  L.  E.  404  ;  5  Com.  Cas.  271  ;   9  Asp.  M.  C.  97 33 

Smailes  v.  Hans  Dessen  &  Co.,  11   Com.  Cas.  74  ;  12  Com.  Cas. 

117  ;  54  W.  E.  471  ;   94  L.  T.  492  ;  95  L.  T.  809  ;   10  Asp.  M.  C. 

225,  319 386,  388 

Soblomsten,  The,  L.  E.  1  A.  &  E.  293  ;  36  L.  J.  Adm.  5  ;  15  L.  T. 

393;  15  W.  E.  591  ;  2  Mar.  L.  Cas.  436 276,  406 

Somes  V.  British  Empire  S.  Co.,  E.  B.  &  E.  353,  367  ;  8  H.  L.  Cas. 

388;  27   L.  J.  Q.  B.  397;  28  L.  J.  Q.  B.  220;  30  L.  J.  Q.  B. 

229  ;   4  Jur.  (N.  S.)  893  ;  5  Jur.  (N.  S.)  675  ;  0  Jur.  (N.  S.)  761  ; 

31  L.  T.  (0.  S.)  196  ;  32  L.  T.  (0.  S.)  340  ;   2  L.  T.  (N.  S.)  547  ; 
6W.  E.  600;  7W.  E.  287;  8  W.  E.  707  ;    113  E.  E.  672,  678.  . 

386,  387 
South  American  Export  Syndicate  v.  Federal  Steam  Nav.  Co.,  14 

Com.  Cas.  228  ;   100  L.  T.  270 ;   53  S.  J.  270  ;  25  T.  L.  E.  272  ; 

11  Asp.  M.  C.  195     34 

Spafford  V.  Dodge,  14  Mass.  65,  72    727,  747,  769 

Speight  V.  Gaunt,  9  App.  Cas.  1  ;  53  L.  J.  Ch.  139  ;  50  L.  T.  330  ; 

32  W.  E.  435  ;  48  J.  P.  84     . 404 

Star  of  Hope,  The,'  9  Wall.  (U.  8.  Sup.  Ct.)  203    155,  721,  724, 

736,  741,  755,  760,  769,  770 

Star  of  Hope,  The,  17  Wall.  (U.  S.  Sup.  Ct.)  651 742,  760 

S.S.  Carisbrook  Co.  v.  London  and  Provincial  Mar.  Ins.  Co.     (See 

Carisbroolc  S.S.  Co.  v.  London  and  Prov.  Mar.  Ins.  Co.)  .  .359,  367 
Steel  V.  State  Line  S.S.  Co.,  3  App.  Cas.  72 ;  37  L.  T.  333 ;  3  Asp. 

M.  C.  516    33,  35 

Stewart  v.  W.  India  »&  Pacific  S.S.  Co.,  L.  E.  8  Q.  B.  88,  362  ;  42 

L.  J.  Q.  B.  191  ;   27  L.  T.  820  ;  28  L.  T.  742  ;  21    AV.  E.  953  ; 

1  Asp.  M.  C.  528  ;  2  Asp.  M.  C.  32     23,  6'4,  86,  229 

Strang,  Steel  &  Co.  v.  Scott,  14  App.  Cas.  601  ;  59  L.  J.  P.  C.  1  ; 

61  L.  T.  597  ;  38  W.  E.  452  ;   6  Asp.  M.  C.  419 36,  37,  59, 

75,  390,  394,  731 

Strathdon,  The,  94  Eed.  E.  206 ;   101  Fed.  E.  600     38,  732 

Strong  V.  Nev.'  York  Fireman's  Ins.  Co.,  11  Johns.  E.  323    .  .763,  777 

Sturgess  v.  Cary,  2  Curtis  (Cir.  Ct.)  59  ;  Fed.  Cas.  13572 155,  721, 

741,  762,  773,  778 
Stnrgis  V.  Cary,  2  Curtis  (Cir.  Ct.)  382  ;  Fed.  Cas.  13573    721,  778 


XXxii  LIST  OF  CASES. 

PAGE 

Svendsen  v.  WaUace,  11  Q.  B.  D.  616  ;  13  Q.  B.  D.  69  ;  10  App. 

Cas.  404  ;  52  L.  J.  Q.  B.  397  ;  53  L.  J.  Q.  B.  385  ;  54  L.  J. 

Q.  B.  497  ;  48  L.  T.  795  ;  50  L.  T.  799  ;  52  L.  T.  901  ;  30  W.  R. 

841  ;  34  W.  R.  309 ;  5  Asp.  M.  C.  87,  232,  453  22,  135,  205, 

212,  230—21^9,  252,  255,  258,  260,  262,  273,  327,  775 
Syrian,  The,  14  L.  T.  (N.  S.)  833 180 


T. 

Tattersall  v.  National  S.S.  Co.,  12  Q.  B.  D.  297  ;  53  L.  J.  Q.  B. 

332  ;  50  L.  T.  299 ;  32  W.  R.  566  ;  5  Asp.  M.  C.  206 33 

Taylor  v.  Curtis,  4  Camp.  337  ;   1  Holt,  N.  P.  193  ;  0  Taunt.  608  ; 

2  Marsh.  209  ;   10  R.  R.  680    116,  117 

Thames  Ironworks   Co.  v.  Patent  Derrick  Co.,  1  J.  »S:  H.  93  ;  29 

L.  J.  Ch.  714  ;  6  Jur.  (N.  S.)  1013  ;  2  L.  T.  208  ;  8  W.  R.  408  .  387 
Trafalgar  S.S.  Co.  v.  British  and  Foreign  Mar.  Ins.  Co.,  Shipping 

Gazette,  18th  Nov.  1904  142,  178 

True  Blue,  The,  2  W.  Rob.  176    176 


U. 

Undaunted,  The,  Lush.  90  ;  29  L.  J.  Adm.  176 ;  2  L.  T.  520  .... 

181,  182 
United  States  v.  Wilder,  3  Sumner  (U.  S.),  308 375,  773 


V. 

Van  den  Toorn  v.  Leeming,  70  Fed.  R.  251 ;  79  Fed.  R.  107 738 

Vandyck,  The,  7  P.  D.  42  ;  5  Asp.  M.  C.  17  ;  47  L.  T.  695 177 

Yavasseur  v.  Krupp,  9  Ch.  D.  351  ;  39  L.  T.  273  ;  28  W.  R.  642..  375 

Vesta,  The,  2  Hagg.  Adm.  189 181 

Ylierhoom  v.  Chapman,  13  M.  &  W.  230  ;  13  L.  J.  Ex.  384  ;  8  Jur. 

81 1  ;  67  R.  R.  582    276 

Vortigeri;,  The,  [1899]  P.  140 ;  68  L.  J.  P.  49  ;  47  W.  R.  437  ;  80 
§[L.  T.  382;   15"t.  L.  R.  259;  4  Com.   Cas.  152;   8  Asp,  M.  C. 

523 99 


II 


I 


LIST  or  CASES.  XXXlll 


PAGE 

Walford  de  Baerdemaecker  v.  Galindez,  2  Com.  Cas.  127 142.  385 

Walker  v.  U.  S.  Ins.  Co.,  11  Sf^rg.  &  Raw.  (Peniis.)  R.  61    154 

Walthew  v.  Mavrojaui,   L.   E.   5   Ex.    116;   39  L.  J.  Ex.  81  ;  22 

L.  T.  310  ;  3  Mar.  L.  Cas   382 23,  24,  194,  205,  212,  222,  239 

Wamsutta  Mills  v.  Old  Colony  Steamboat  Co.,  137  Mass.  471     .  .    725 

Warrior,  The,  Lush.  476 ;  6  L.  T.  133     287 

Water  Witch's  Cargo,  The,  29  Fed.  R.  159    774 

Wavertree  Sailing  Ship  Co.  v.  Love,  [1897]  A.  C.  373  ;  66  L.  J. 

P.  C.  77  ;  76  L.  T.  576  ;   13  T.  L.  R.  419  ;  8  Asp.  M.  C.  276    .  . 

292,  40S 

Wellman  i-.  Morse,  76  Fed.  R.  573    773,  774,  776 

Westminster,  The,  1  W.  Rob.  229,  235 176,  178 

Westoll  V.  Carter,  3  Com.  Cas.  112 ;   14  T.  L.  R.  281     798 

Weston  V.  Train,  2  Curtis  (Cir.  Ct.),  49 756 

Wliitecross  Wire  Co.  v.  Savill,  8  Q.  B.  D.  653  ;  51  L.  J.  Q.  B. 

426  ;  46  L.  T.  6*3;   30  W.  R-  588;  4  Asp.  M.  C.  531  ..  .  .23,  46,  90 

Wilhelm  Schmidt,  The,  25  L.  T.  34  ;   1  Asp.  M.  C.  82 278 

Willem  III,  The,  L.  R.  3  A.  &  E.  487  ;  25  L.  T.  386  ;  20  W.  R. 

216  ;    1  Asp.  M.  C.  129     378 

William  J.  Quillan,  The,  175  Fed.  R.  207   81 

Williams  v.   London  Assurance  Co.,  1   M.  &  S,  318;    14  R.  R. 

441 357,  359,  360 

Williamson  v.  Inues,  1  M.  &  R.  88  ;  8  Bing.  81,  n 363 

Wilson  V.  Bank  of  Victoria,  L.  R.  2  Q.  B.  203  ;  36  L.  J.  Q.  B.  89  ; 

16  L.  T.  9  ;   15  W.  R.  693  ;  2  Mar.  L.  Cas.  449   .  .47,  137,  244,  264, 

269,  281,  757 
Wilson  V.  Owners  of  Cargo  per  Xantho,  11  P.  D.  170;  12  App. 

Cas.  503  ;  55  L.  J.  Adm.  65  ;  56  L.  J.  Adm.  116  ;  55  L.  T.  203  ; 

57  L.  T.  701  ;   35   W.  R.   23;   36  W.  R.    353;   6  Asp.    M.   C. 

8    207 32,  33,  36 

Woo'dhorn,  The,  92  L   T.  Journ.  113    286 

Woodley  V.  Michell,  11  Q.  B.  D.  47  ;  52  L.  J.  Q.  B.  325  ;  48  L.  T. 

599  ;   31  W.  R.  651  ;  5  Asp.  M.  C.  71   36 

Wordsworth,  The,  88  Fed.  R.  313 725,  737 

Worms  V.  Storey,  11   Exch.  427  ;   25  L.  J.  Ex.  1  ;    4  W.  R.  115  ; 

26  L.  T.  (0.  S.)  106  ;   105  R.  R.  606     35,  273 

Wright  V.  Marwood,  7  Q.  B.  D.  62  ;  50  L.  J.  Q.  B.  643  ;  45  L.  T. 

297  ;  29  W.  R.  673  ;  4  Asp.  M.  C  451    28,  29,  59,  64,  68,  73 


L. 


XXXIV  LIST  OF  CASES. 


X. 

PAGE 

Xantho,  The.     (See  Wilson  v.  Otoners  of  Cargo  per  Xantho.)  ....    32, 

33,  36 


Y. 

Yoxuig  V.  S.S.  "Scotia,"  [190,3]  A.  C.  501  ;  72  L.  P.  C.  115;  89 
L.  T.  374  ;  9  Asp.  M.  C.  485 375 

Yucatan,  The.  (See  Ansonia  Clock  Co.  v.  A''.  Y.  and  Cuba  Mail 
S.S.  Co.) 733,  736 


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ADDENDUM. 


The  following-  note,  sent  to  the  editors  by  Mr.  W.  E.  Coe,  to 
be  inserted  in  Appendix  V.  at  the  end  of  the  discussion  on  sub- 
stituted expenses  {post,  pp.  756 — 759),  reached  them  too  late  for 
inclusion  in  the  body  of  the  work: — 

"  Since  the  foregoing  was  written,"  he  says,  "  a  decision  in  the 
United  States  District  Court  at  Philadelphia  involving  the  question 
has  been  reported.  Shoe  v.  Craig,  189  Fed.  227. 

"  The  schooner  Matilda  T.  Borda,  while  on  a  voyage  from  Fer- 
nandiua  to  Philadelphia,  sustained  damage  to  her  rudder  during 
heavy  weather  and  sprang  a  leak ;  she  put  in  to  Charleston,  and  from 
there  was  towed  to  destination.  The  arrangement  for  towing  the 
vessel  to  destination  was  made  by  the  managing  owner  without  any 
conference  with  the  owners  of  the  cargo.  The  vessel  and  cargo 
were  both  owned  in  Philadelphia. 

"  The  Court  found  that  it  was  impossible  to  make  the  necessary 
repairs  at  Charleston,  but  that  the  vessel  could  have  been  repaired 
at  Savannah,  about  ninety  miles  distant,  and  decided  that  the  towage 
was  not  general  average  on  the  ground  that  the  evidence  showed 
that  the  master  and  managing  owner  were  acting  solely  in  the  interest 
of  the  freight,  and,  further,  that  under  the  circumstances  of  the 
case  the  cargo  interests  should  have  been  consulted. 

"In  the  opinion,  McPherson,  J.,  made  tlie  following  remarks:  — 

"  '  (2)  Of  course  the  cost  of  towage  from  Charleston 

to  Philadelphia  would  not  in  any  event  be  a  general  average 

charge,  strictly  so  called,  but  in  a  proper  case  it  inight  be 

what  is  known  as  "a  substituted  expense."    .... 

"  '  The  tendency  is,  apparently,  toward  the  allowance 
of  substituted  expenses,  but  the  subject  needs  cautious 
treatment.  In  the  existing  condition  of  the  law,  I  do  not 
believe  that  a  substituted  expense  is  ever  allowable  in 
general  average  unless  all    parties  in  interest    have    first 


1  ADDENDUM. 

agreed  to  it.  The  master'n  power  to  bind  all  interests  may 
properly  support  such  charge.s,  if  he  has  acted  in  good 
faith  and  without  the  opportunity  of  consulting  those  who 
may  be  affected  by  his  act.  It  may  easily  be  impracticable 
to  confer  with  all  the  consignees  of  a  general  cargo,  foi- 
example;  and  circumstances  may  also  be  such  that  he  must 
act  promptly  on  his  own  judgment  without  consulting  any 
interest — either  ship,  freight,  or  cargo;  but  in  these  days 
of  easy  communication  by  telegraph  and  telephone,  there 
is  usually  no  difficulty  about  consultation,  and  where  this 
is  true  I  think  good  faith  requires,  prima  facie  at  least, 
that  notice  should  be  given.  In  such  a  situation,  the  lack 
of  any  effort  to  communicate  may  well  furnish  ground  for 
the  inference  that  the  course  actually  taken  was  intended 
to  advance  a  particular  interest,  and  not  the  interest  of 
all.  In  the  present  case  I  think  this  inference  should  be 
drawn.  As  already  stated,  the  course  adopted  by  the  master 
(which  was  evidently  dictated  by  the  managing  owner) 
seems  to  have  been  taken  in  the  interest  of  the  freight 
alone,  and  therefore  the  cost  cannot  be  brought  into  general 
average.' 
"  I  see  nothing  in  this  decision  to  caxise  me  to  change  the  views 
above  expre.s«ed  on  this  subject,  and  on  the  particular  facts  of  the 
case  before  the  Court  its  conclusions  were  undoubtedly  correct. 

"  In  the  present  state  of  the  law  the  decision  points  to  the  advis- 
ability of  obtaining  the  agreement  of  the  interested  parties  before 
adopting  a  substituted  course." 


GENERAL    AVERAGE. 


INTRODUCTION. 


The  law  of  General  Average  is  built  upon  or  around  a 
small  fragment  of  ancient  Greek  legislation,  which  forms 
the  text  for  a  chapter  in  the  Digest  of  Justinian:  "  Lege 
Rhodid  cavetur  ut  si  levandce  navis  gratia  jactus  mercium 
factus  est,  omnium  contributione  sarciatur  quod  pro  omnibus 
datum  esty  The  Rhodian  law  provides  that  if  in  order 
to  lighten  a  ship  merchandize  is  thrown  overboard,  that 
which  has  been  given  for  all  shall  be  replaced  by  the 
contribution  of  all.  In  this  short  sentence  we  have  the 
principle,  and  a  perfect  example,  of  the  peculiar  com- 
munism to  which  seafaring  men  are  brought  in  extre- 
mities. What  is  given,  or  sacrificed,  in  time  of  danger, 
for  the  sake  of  all,  is  to  be  replaced  by  a  general  con- 
tribution on  the  part  of  all  who  have  been  thereby 
brought  to  safety.  This  is  a  rule  which  from  the  oldest 
times  of  which  we  have  a  record  has  been  universal 
amongst  seafaring  men,  no  matter  to  what  country  they 
belong,  being  obviously  founded  on  the  necessities  of 
their  position. 

"  While  the   Phoenicians   and    the   Carthaginians,"  The 
says  M.  Pardessus(*^<),  "were  making  a  commerce  truly 


lihodians. 


((/)  1  Pard.  lutr.  xxvi.,  xxvii. 

B 


INTRODUCTION. 

universal,  a  career  less  vast,  but  yet  not  without  import- 
ance, was  opening  itself  to  the  navigation  of  the  Greeks, 
and  especially" — for  Greece  itself  was  late  in  entering 
upon  the  field — "  the  Greek  colonies  in  Asia  Minor  and 
the  adjacent  islands.  These,  surrounded  by  fertile  lands, 
intersected  with  bays  and  rivers,  not  far  off  from  one 
another,  and  yet  very  diversified  in  their  agricultural 
products,  early  profited  by  the  facilities  their  position 
gave  them,  to  exchange  their  commodities,  and  to  carry 
them  into  Phoenicia,  which  was  a  sort  of  entrepot^  Thus 
sprung  up  a  commerce,  which  appears  to  have  been  of 
some  importance,  though,  perhaps,  not  extending  very 
far  beyond  the  limits  of  the  -^gean  Sea.  Rhodes  is 
one  of  the  cities  decorated  by  the  title  of  "'mistress  of 
the  sea.''  In  the  Punic  wars,  we  learn  from  Polybius, 
Rhodes  took  the  Roman  side,  and  did  good  service  in 
attacking  the  war-vessels  of  the  Carthaginians, — as 
cruisers  perhaps  (^).  Cicero  says  of  the  Rhodians  that 
they  were  a  people  whose  naval  power  and  discipline 
remained  even  to  times  within  his  own  memory  ((?). 
Pardessus  considers  it  probable  that  the  Rhodians  bor- 
rowed their  maritime  laws  from  the  Phoenicians,  though 
he  hardly  offers  any  particular  reasons  for  the  con- 
jecture [d). 

To  be  able  to  say,  indeed,  that  Greeks  from  Rliodes 
were  the  first  to  express  the  principle  of  general  average 
in  words,  and  so  give  it  currency,  throws  very  little 
light  on  its  true  origin.  It  must  have  been  already  very 
ancient  and  very  widespread  as  a  j)i'actice  before  it 
became  so  neatly  formulated.  We  must  constantly  re- 
member that  in  the  old  times,  for  perhaps  thousands  of 
years,  the   merchants  or  owners  of  cargo   used,  almost 

(6)  Park,  Ins.  Intr.  xlvii.  (c)  Pro  leg.  Manil.  c.  13. 

{d)  1  Paid.  lutr.  xxix. 


INTRODUCTION. 


a 


of  course,  to  sail  with  their  wares  from  port  to  port  like 
pedlars.  In  these  little  vessels,  mostly  navigating  the 
Mediterranean  or  ^gean  Sea,  where  storms  quickly 
spring  up  and  subside,  occasions  would  be  frequent 
where  shipwreck  could  only  be  averted  by  lightening 
the  ship  of  portions  of  her  cargo,  a  measure  which, 
however  beneficial  to  the  rest,  might  to  one  man  on 
board  mean  ruin.  His  consent  to  such  a  sacrifice  could 
only  be  bought  by  a  promise — first  express,  then  cus- 
tomary and  taken  for  granted — that  when,  or  if,  the 
ship  came  safe  to  shore,  all  who  had  profited  by  his 
loss  would  pay  their  share  to  make  it  good. 

The  Ron\ans,  the  great  improvers  of  other  people's  The  Romans. 
inventions,  have  given  us  a  good  specimen  of  their  work 
in  this  kind,  in  the  chapter  of  the  Digest  headed  De  Lege 
Rhodid  de  Jactu.     The  sentence  above  quoted  takes  the 
place  of  honour,  as  a  sort  of  text,  and  is  followed  by  a 
fragmentary  collection  of  short  judgments  or  opinions, 
some  of    them    named  as  the  dicta  of  Servius,  Ofilius, 
Labeo,  or  other  eminent  jurisconsults  of  the  time.     It  is 
not  easy  to  trace  the  principle  of  arrangement,  unless  it 
be,  first,  to  show  by  examples  (such  as  the  cutting  away 
of  a  mast)  that  the  case  of  throwing  cargo  overboard  is 
only  to  be  treated  as  an  illustration  of  some  more  general 
principle ;  secondly,  to  establish  that  this  rule  of  contri- 
bution is  to  be  taken  in  due  correlation  with  the  rights 
of  property,  by  severely  restricting  it  to  such  sea-losses 
as  flow  from  a  voluntary  sacrifice  for  the  sake  of  all, 
leaving  every  loss,  whether  of  ship  or  cargo,   which  is 
the  result  of  pure  accident,  to  lie  where  it  falls  ;  and, 
thirdly,  when  these  two  points  are  made  clear,  to  deter- 
mine some  of  the  more  complicated  questions  which  arise 
in  carrying  the  principle  consistently  into  operation  [e). 

(e)  See  Appendix  A. 

b2 


4 


INTRODUCTION. 


Decay  of 
Roman  law. 


Survival  as 
tradition. 


The  Rolls  of 
Oleron. 


After  the  fall  of  the  Roman  Empire,  its  laws,  as  we 
know,  in  the  deep  barbarism  that  ensued,  fell  into  almost 
absolute  forgetfulness.  They  were  of  course  no  longer 
operative  as  laws.  The  language  they  were  written  in 
became  more  and  more  strange  in  Europe  as  the  continent 
grew  to  be  overrun  with  barbarians.  That  which  had  once 
been  boasted  to  be  the  code  of  law  for  the  whole  civilized 
world  was  by  degrees  so  neglected  that  it  has  been 
doubted  by  scholars,  says  Pardessus,  whether  there 
existed  in  Europe  a  single  copy  of  the  Pandects  at  the 
time  when  the  Pisans,  about  a.d,  1135,  discovered  one 
on  the  conquest  of  Amalfi  (/). 

In  the  recollection  of  seafaring  men,  however,  or  as 
tradition,  or  as  a  rule  commending  itself  on  account  of 
its  utility,  the  outlines  of  this  chapter  de  jactu  retained  a 
hold,  in  some  degree,  over  the  seafaring  population  of 
Europe,  and  were  reproduced,  in  a  simpler  and  ruder 
form,  in  the  several  collections  of  sea  laws  which  belong* 
to  a  later  period.  The  more  elaborate  provisions  of  \h.e 
Digest  disappeared,  but  after  a  long  interval  were  re- 
published, and  under  another  name  reassumed  their 
authority. 

Of  the  codes  or  collections  of  customs  here  spoken 
of,  perhaps  the  most  important,  as  that  which  had  the 
most  extended  authority,  is  one  called  the  Rolls  or 
Judgments  of  Oleron.  Their  origin  is  lost  in  obscurity  : 
but  from  internal  evidence  we  may  conclude  that  they 
were  a  collection  of  judgments,  probably  delivered  in 
some  court  of  Bordeaux,  and  having  reference  to  the 
commerce  in  wine  which  had  its    centre    in  that  city. 


(/)    1    Pard.    140.      "Criticism,"  ginal " — meaning,   lie  tells  us,   this 

says  Gibbon,  "  has  pronounced  that  Amalfitan  copj\      (Decl.  and  Fall, 

all  the  editions  and  manuscripts  of  chap.  44.) 
the  West  are  derived  from  one  ori- 


INTRODUCTION. 


5. 


Selden  tells  us  that  these  Rolls  were  revised  by  our  King 
Richard  I.  on  his  return  from  the  Holy  Land  during  his 
stay  at  the  Isle  of  Oleron,  and  were  declared  to  be  the 
law  of  the  sea,  under  the  title  of  la  ley  Ohjroun{g).     Be 
that  as  it  may,  what  is  certain  is  that,  for  some  reason  or 
other,  these  judgments  obtained,  and  held  for  some  cen- 
turies, over  the  greater  part  of  Europe,  a  very  consider- 
able authority.     Tliey  were  copied  into  the  Black  Book 
of  our  Admiralty  (//).     By  an  English  Act  of  Parliament 
of  the   year   1402   (so  M.   Pardessus   informs   us),    our 
Admiralty  Court  was  directed    to   govern  its   decisions 
exclusively  by  the  laws  of  Oleron  and  the  common  law 
of  England  (?:).     The  old  laws  of  Flanders  (/^),  of  Cata- 
lonia (/),  of  Genoa  (w),  and  of  Holland  (w),  in  like  manner 
contain  clauses  literally  copied  from  the  judgments  of 
Oleron. 

These  judgments  consist  of  fifty-six  articles  or  short 
sentences,  of  which  the  first  thirty-five  are  distinguished 
by  each  ending  with  the  words,  "  c^esf  le  jugement  en  ce 
cas  ;^^  and  the  others  with  the  words  ^West  le  jugement^ 
The  latter  are  supposed  to  be  a  later  addition.  The  only 
introductory  description  or  title  is  "  c''est  la  copie  des 
Roulles  de  Oleron  et  des  jugemens  de  mer.^^  They  consist 
of  a  series  of  short  sentences  or  regulations,  thrown 
together  without  any  obvious  order,  and  giving  direc- 
tions for  the  conduct  of  business  by  sea ;  as,  how  the 
master  must  not  sell  his  ship  unless  by  consent  of  the 
co-owners;   but,  if  he  is  away  from  the  home  port,  at 

{(j)  Selden,  Mare  Clausum,  lib.  2,      par  la  ley  d'Angleterrc  et  ne  mije  par 
cap.  24 ;   1  Pard.  2S9.  custum   ne  par   nul    autre    manere.^* 

(h)  1    Pard.    309  ;    Twiss's    Black      4  Hen.  4  ;  4  Pard.  197. 

Book,  p.  97.  (/^  ^  P«i'f^-  •■^'5- 

(i)   '' M    aiixi    les   dites   adviirelles  {I)  5  Pard.  362. 

usent  leurs  leys  soulernent  par  la  ley  (w)  4  Pard.  521. 

de  Oleron  et  ancienne  ley  de  la  mer  et  (»)  1  Pard.  406. 


6 


INTRODUCTION. 


Rules  for 
contribution 
to  jettison. 


Bordeaux  or  la  Roclielle,  or  any  other  place,  and  is 
freighted  for  a  foreign  port,  and  in  need  of  money  for 
the  ship's  service,  he  may  pledge  the  ship's  apparel  to 
raise  it  (o) ;  how  in  determining  whether  the  weather 
is  fit  for  him  to  put  to  sea,  he  is  to  be  guided  by  the 
opinion  of  tlie  majority  of  those  on  board,  or  if  he  does 
otherwise  shall  himself  be  answerable  for  a  loss ;  how  if 
a  ship  is  wrecked  on  any  coast,  the  mariners  are  bound 
to  save  whatever  they  can  of  the  ship's  apparel  and  the 
cargo ;  and  how,  if  they  do,  he  is  to  pay  them  a  reason- 
able salary,  and  their  expenses  home,  so  far  as  the  value 
of  the  things  saved  shall  extend,  and  these  he  may  put 
in  pledge  to  raise  funds  for  the  purpose  (/>);  rules  for 
avoiding  or  i^unishing  collisions  at  sea,  with  many  other 
regulations  of  a  like  nature.  They  form,  in  short,  a  sort 
of  "  Body  of  Sea  Law." 

Concerning  our  present  subject,  all  that  is  said  in 
the  Rolls  of  Oleron  is  the  following  : — 

Art.  8.  "A  ship  leaves  Bordeaux  or  elsewhere,  and  it 
happens  that  a  storm  takes  it  at  sea  and  the  ship  cannot 
escape  without  throwing  out  goods  from  within.  The 
master  is  bound  to  say  to  the  merchants:  '  Signors,  we 
cannot  escape  without  throwing  out  the  wines  and  the 
goods.'  The  merchants,  if  there  are  any,  shall  signify 
their  good  will  who  shall  agree  to  this  jettison,  and  that 
the  master's  reasons  are  most  clear;  and  if  they  do  not 
agree,  the  master  ought,  nevertheless,  not  to  fear  to  throw 
out  as  much  as  shall  seem  to  him  good,  swearing  himself 
and  the  third  of  his  crew  on  the  Holy  Gospels,  when  he 
shall  have  come  safe  ashore,  that  he  did  it  of  no  malice, 
but  to  save  their  lives,  the  ship,  the  goods,  and  the  wines. 
Those  which  have  been  thrown  out  ought  to  be  appraised 
at  the  rate  of  those  which  shall  come  safe,  and  shall  be 
divided  pound  by  pound  amongst  the  merchants;  and  the 
master  ought  to  share  on  account  of  the  ship  or  his  freight, 
at  his  choice,  to  restore  the  damage.     The  mariners  ought 

(o)  Art.  1 :   1  Pard.  323.  ( p)  Art.  2  :  2  Pard.  324. 


INTliODUCTION. 


to  have  each  a  ton  (toiinel)  free,  and  the  rest  shall  contri- 
bute to  the  jettison  according  to  what  he  has,  if  he  defends 
himself  on  the  sea  like  a  man;  and  if  he  does  not  defend 
himself,  he  shall  have  nothing  free:  and  the  master  shall 
be  believed  upon  his  oath.  And  this  is  the  judgment  in 
this  case  "(g). 

Art.  9.  "It  occurs  that  the  master  of  a  ship  must  cut  Case  of  mast 
away  his  mast  by  force  of  tempest;  he  ought  to  call  the  cutaway, 
merchants  and  show  them  that  it  is  fitting  to  cut  the  mast 
to  save  the  ship  and  the  wares;  and  sometimes  it  occurs  that 
one  cuts  cables  and  the  anchors  to  save  the  ship  and  the 
wares.  These  ought  to  be  counted  pound  by  pound  like 
jettison;  and  the  merchants  ought  to  share  and  pay  without 
delay,  before  their  goods  are  put  out  of  the  ship;  and  if 
the  ship  was  held  fast  (en  dur  siege)  and  the  master  was 
delayed  by  their  debate,  and  there  was  collusion,  the  master 
ought  not  to  suffer,  but  he  ought  to  have  his  freight  on 
those  wines  as  he  will  take  for  the  others.  And  this  is 
the  judgment  in  this  case  "  (r). 

Art.  35.   "It  is  ordered  and  established  for  custom  of  What  shall 


contribute. 


(g) 'Laws  of  Oleron,  Art.  8;  1 
Pard.  328.  In  explanation  of  this 
franchise  allowed  to  the  sailors,  it 
may  be  mentioned  that  by  Art.  31, 
those  seamen  who  have  agreed  to  be 
paid  as  wages  a  certain  proportion  of 
the  freight  shall  each  be  allowed  one 
ton  free  of  freight.  This  ton  was 
likewise,  it  appeal's,  free  of  con- 
tribution to  average  if  its  owner 
behaved  well. 

The  original  of  this  clause,  given 
by  Pardessus,  is  as  follows : — Art.  8. 
"  Une  neef  s'enpart  de  Burdeux  ou 
d'aillours,  et  avient  que  turment  la 
prent  en  meer  et  qu'il  ne  poet  eschaper 
sans  jettre  hors  les  darrees  de  dedans; 
le  mestre  est  tenu  dire  as  marchantz : 
Seignors,  nous  ne  pouvons  eschaper 
sans  jettre  des  vins  et  des  darrees. 
Les  marchantz,  si  en  y  a,  repondront 
leur  volunte  qui  agreeront  bien  de 
ce  giectement  si  que  les  resons  du 
mestre  sont  les  plus  cleres;  et  s'ils  ne 
greent  mye,  le  mestre  ne   doit  pas 


lesser  pur  a  qu'il  n'en  guicte  tant 
qu'il  verra  que  bien  soit,  jurant  soi 
tiers   de    ses    compaignons    sur    les 
saints  Evangelies,  quant  sera  venu 
a  saufvete  a  terre,  qu'il  nel  faisoit 
de  nul  malice,  mes  pur  saufver  leurs 
corps,  la  neef  et  les  darrees  et  les 
vyns.     Ceux  qui  seront  giectes  hors 
diebvent    estre    apprises    a    fur    de 
ceux  qui  seront  venus  en   saufvete 
et  seront  partis  livre  par  livre  entre 
les   marchantz ;    et  y  doit  partir  le 
mestre  a  comi^ter  la  neef  ou  son  fret 
a  sou  choix  pour  restorer  le  damage. 
Les  mariners  deibvent  avoir  chascun 
un    tonnel    francz,    et    I'autre    doit 
partir  an  giect  solonc  ce  qu'il  avera, 
s'il  se  defend  en  la  meer  come  un 
home ;    et   s'il    ne   se   defend    mye, 
il  n'aura  rienz  de  franchise ;  et  sera 
le    mestre    creu    par    son    serment. 
Et  ce  est  le  juggement  en  ce  cas." 

(r)  Rolls  of  Oleron,  Art.  9:  1  Pard. 
329. 


8  INTRODUCTION. 

;  the  sea  that,  when  it  occurs  that  one  makes  jettison  from  a 

ship,  it  is  well  written  at  Rome  that  all  the  merchandize  and 
effects  contained  in  the  ship  should  share  in  the  jettison, 
pound  for  pound ;  and  if  there  are  cups  of  silver  more  than 
one  in  the  ship,  they  ought  to  contribute  to  the  jettison 
[ou  faire  gre\,  and  one  cup  also,  if  it  is  not  borne  at  table 
for  the  service  of  the  mariners;  robes  and  linen  if  they  are 
not  yet  cut,  or  have  not  yet  been  worn,  all  shall  contribute 
to  the  jettison.    And  this  is  the  judgment  in  this  case  "  (s). 

Other  old  Most  of  the  otliGr  old  sea-laws  of  Europe, — such  as 

Europe.  the  law  of  Wisbuy,  which  tradition  ascribes  to  a  sort  of 

convention  of  mariners  and  merchants  from  all  parts  of 
Europe,  meeting  on  occasion  of  some  great  fair  or  mart 
at  Wisbuy  in  the  Baltic;  the  Laws  of  Amsterdam,  of  the 
Hanseatic League,  of  Flanders,  of  Genoa,  and  Catalonia, — 
either  set  forth  literal  translations  of  these  two  sentences, 
or  reproduce  with  less  dramatic  vivacity  rules  substan- 
tially the  same.  Everywhere  jettison  and  the  cutting 
away  of  a  mast  and  slipping  a  cable  are  the  first 
examples  of  a  general  contribution  ;  to  which  are  gradu- 
ally added,  in  later  codes,  some  instances  of  extra- 
ordinary expenditures  for  the  common  safety,  such  as 
the  expense  incurred  in  lightening  a  stranded  ship  [t). 

(s)  1  Pard.  329.  This  article  is  former.  The  customs  of  Amsterdam, 
No.  32  in  the  manuscript  of  the  Enchuysen,  and  Stavern,  date  pro- 
English  Admiralty.  It  is  not  found  bably  the  middle  of  the  loth  cen- 
in  any  other  copy,  printed  or  MS.  tuiy,  name  the  cases  of  jettison 
(1  Pard.  329,  n.  1.)  (ib.  406),  and  of  cutting  a  mast  or 

(<)  The  law   of    Wisbuy  provides  cable,  or  anything  else  to  save  the 

for  the  case  of  jettison  (1  Pard.  466,  ship  and  cargo.     (Ib.  408.) 

469),  and  cutting  away  a  mast  (ib.  The  Regulations  of  the  Hanseatic 

470);    and    again    (ib.    475-7),    for  League,   in   1447,  have  a  law  con- 

these  cases,  and  for  cutting  a  cable  cerning  jettison,  not  however  as  to 

or  abandoning  an  anchor  to  save  the  contribution,  but  ordering  a  survey 

ship  and  cargo.      This  code  ajjpears  on  the  ship,  on  arrival,  to  verify  the 

to   have   been    formed    by    gradual  fact  of  jettison,  and  to  see  that  it 

accretion :  the  date  of  our  copy  is  was  not  caused  by  overloading.     (2 

A. D.  1505;  so  that  no  doubt  the  latter  Pard.  485.)     The  Eegulation  of  1614 

clause    is    more    modern    than    the  provides  for  jettison  and  the  cutting 


INTRODUCTION.  ^ 

It  will  be  observed  that  in  the  iiKlsfments  of  Oleron,  idea  of 

•'        *-  _  bargain  made 

as  in  all  the  sea-laws  of  modern  Europe  which  adopted  on  the  spot. 
and  developed  those  judgments,  the  idea  which  lies  at 
the  foundation  of  this  contribution  is  that  of  a  bargain 
or  agreement  made  between  the  captain  and  the  owners 
of  the  cargo  at  the  moment  of  danger ;  on  the  part  of  the 
latter  a  consent  to  part  with  their  goods,  on  the  part  of 
the  former,  and  likewise  of  the  latter  as  amongst  them- 
selves, an  undertaking  to  make  rateable  compensation  in 
case  safety  shall  be  attained.  Of  this  idea  there  is  no 
trace  in  the  Roman  law,  the  terms  of  which  would  rather 
lead  us  to  suppose  that  the  rule  was  laid  down  as  obli- 
gatory on  grounds  of  natural  equity. 

The  reader  who  may  feel  a  desire  to  trace  the 
gradual  development  of  the  law  of  general  average  from 
these  simple  beginnings,  will  find  ample  materials  in  the 
learned  pages  of  Pardessus.  In  order  to  form  an  intelli- 
gible notion  of  the  manner  of  its  growth,  it  is  necessary, 
as  Mr.  Maclachlan  has  pointed  out,  to  consider  what  is 
reduced  to  writing  as  laws  or  rules,  in  due  subordination 
to  the  living  body  of  custom,  of  which,  in  its  salient 
features,  the  former  is  a  tardy  and  imperfect  record.    We 

away  of  masts,  just  as  in  the  other  contigerit  navem  aliquod  jactum  facere 

codes,  and  adds  two  curious  regula-  .  .   .  vel  facere   avarias  vel   expensas 

tions,  one  as  to  the  valuing  of  the  aliquas    .    .    .    tile  juctus  vel  avarice. 

ship,  and  the  other  dealing  apparently  emendentur  per  soldmn  et  libravi  de  re 

with  the  case  of  goods  fished  up  from  quw  erit  in  ipsa  navi  vel  ligno  et  de 

a  jettison  and  more  or  less  damaged.  valuta  ipsius   navis  vel   ligni."     (lb. 

(lb.  pp.  548-9.)     With  regard  to  the  521.)     The   Ordinance   of   Catalonia 

law  of  Flanders,  it  appears  that  the  (a.d.  1340)  directs  that  no  jettison  of 

judgments   of   Damme,    or  laws   of  cargo   shall    be    made   without    the 

Westcapelle,    which   we    find    often  consent  of  at  least  the  larger  part  of 

quoted,    are    nothing    more  than   a  the  representatives  of  cargo  present 

translation  of  a  portion  of  the  laws  of  (5    Pard.    362) ;    and    gives    several 

Oleron.     (See  4  Pard.  2.)     A  statute  rules  for  adjusting  the  loss,  particu- 

of  Genoa,  a.d.  1341,  speaks  incident-  larly  that  the  cargo  below  the  deck 

ally  of  jettison  and  the  making  it  shall  not  bo  called  on  to  contribute 

good  (ib.  464);  and  in  a  later  clause  towards  the  jettison  of  goods  carried 

we  find  the  word   "average":   "si  on  deck.     (Art.  32 :  5  Pard.  364.) 


10 


INTRODUCTION. 

are  to  bear  in  mind  that  seafaring  men  have  always,  and 
probably  in  ancient  times  far  more  than  now,  formed  a 
sort  of  commonwealth  of  their  own,  regulated  by  their 
own  laws  and  usages,  cosmopolitan  and  intolerant  of 
change,  as  Pardessus  says,  to  an  extraordinary  degree  (u); 
sociable  amongst  themselves  independently  of  nationality, 
and  only  feeling  as  foreigners  in  the  company  of  lands- 
men. Their  great  opportunities  for  framing  new  rules, 
or  for  giving  the  sanction  of  authority  to  rules  or  collec- 
tions of  rules  that  might  require  it,  were  such  assem- 
blages of  seafaring  men,  merchants  and  mariners,  as 
occasionally  took  place,  for  example,  at  Rome,  when  the 
commerce  of  the  world  w^as  centered  in  supplying  the 
wants  of  the  city  (.^•) ;  or  during  the  Crusades,  which 
called  forth  a  transport  and  sutlery  service  on  a  vast 
scale ;  or  at  such  great  fairs  or  marts,  frequented  by  the 
ships  of  all  nations,  as  that  of  AVisbuy  in  the  Baltic. 
What  was  settled  at  such  gatherings,  whether  carried 
away  in  memory  or  drawn  up  in  the  shape  of  written 
rules,  was  naturally  regarded  as  of  peculiar  authority ; 
and  thus  there  grew  up  by  degrees  a  body  of  common 
law  or  practice  of  the  seas,  apart  from,  yet  recognized 
by,  the  several  municipal  courts  of  Europe. 

In  the  growth  of  this  law,  so  far  as  reduced  to 
writing,  there  are  three  distinct  stages ;  the  Roman  law, 
which  may  be  regarded  as  a  development  of  the  Rhodian 
principle  by  scientific  lawyers ;  the  earlier  codes  of 
modern  Eurojje,  such  as  the  laws  of  Oleron  and  the 
others  I  have  mentioned,  in  which  we  see  a  re-discovery, 

(<<)"  Immutability,  as -well  as  uni-  arms  haviug  successively  destroyed 

formity,  is  almost  of  the  essence  of  the  indejDendence   of    all   the   navi- 

maritime  legislation."    (1  Pard.  140.)  gating  states,  commerce  had  no  other 

{x)  Pardessus,    Collection    de    Lois  purpose  but  to  supply  the  demands 

Maritimes,  Intr.  vi.     Pardessus  here  and  satisfy  the   enjoyments   of  the 

speaks  of  a  period  when  "the  Pioman  capital  of  the  world." 


INTRODUCTION. 

or  revival,  or  perhaps  a  mere  re-assertion  of  the  Rhodian 
principle,  in  its  primitive  simplicity ;  and  thirdly,  after 
the  re-discovery  of  the  lost  Pandects,  a  restoration  of 
the  Roman  development  or  commentary.  It  is  doubtful 
whether  the  honour  of  this  last  restoration  belongs  origin- 
ally to  Spain  or  to  Italy.  Thus,  in  the  Partidas,  a  code  of 
law  issued  a.d.  1266,  under  the  authority  of  Alphonso  X., 
there  is  a  body  of  rules  concerning  general  contribution 
in  case  of  certain  sacrifices  made  at  sea  for  the  common 
safety,  many  of  which  are  evidently  translated  or  adapted 
from  the  chapter  de  jaciu  in  the  Digest  (.y).  In  the  Consti- 
tutum  Usus  of  the  City  of  Pisa,  the  date  of  which  is  placed 
by  Pardessus  at  1160,  there  are  in  like  manner  evident 
traces  of  the  Digest,  though  only  a  few,  and  these  the 
simpler,  provisions  are  borrowed  from  it,  as  though  the 
Digest  were  before  the  framers,  but  there  was  a  good 
deal  in  it  too  complicated  either  for  their  comprehension 
or,  in  their  opinion,  for  practical  use.  Still,  by  means 
of  those  provisions  of  the  Digest  which  they  retained, 
this  Pisan  code  was  able  to  say  nmch  more  concerning 
general  average  than  any  of  the  older  or  more  northern 
codes. 

The  word  "  averao^e  "  is  of  much  later  origin  than  The  word 
the  thing.  Mr.  Maclachlan  conjectures,  indeed,  tliat  it  is 
derived  from  aversio,  as  denoting  a  means  of  escape  from 
danger(^);  but  no  trace  of  the  actual  use  of  this  metaphor, 
in  classical  or  subsequent  times,  has  been  pointed  out  by 
him.  On  the  other  hand,  there  are  to  be  found,  in  this 
old  Pisan  code,  some  faint  traces  of  what  looks  like  the 
growth  or  half-conscious  construction  of  a  technical  term 
out  of  the  common  Italian  word  avere,  the  liaving  or 
property.     The  code  is  written  in  a  sort  of  Italianized 

(?/)  6  Pard.  47—49. 

(2)  See  Maclachlan,  Merchant  Shipping,  chap.  14,  Appendix. 


11 


12  INTRODUCTION. 

or  mongrel  Latin  ;    the  captain,  for  example,  is  called 
capitaneus,  the  sailors  marinarii,  and  so  forth.     The  word 
avere  is  used  throughout  the  code  to  denote  the  basis  of 
contribution  or  contributory  value  ;  thus,  the  jettison  and 
damage  through  jettison,  it  says,  shall  be  equalized  over 
'^  totum  avere,''^  all  the  property,  remaining  in  the  ship. 
In  another  place  it  speaks  of  those  whose  avere  (property) 
has  been  cast  out,  and  those  whose  avere  is  safe  («).     In 
a  later  Pisan  code,  a.d.    1298,   a  regulation  concerning 
jettison  is  headed,  "  dc  divisione  haveris  'projectV  (b).    In  a 
Genoese  code,  a.d.  l-Ml,  the  word  averia,  or  avaria,  for  it 
is  spelt  both  ways,  has  come  to  mean  expenses  or  losses 
for  the  common  good,  and  as  such  forming  charges  upon 
the  avere  or  entire  property  (c).     In  a  statute  of  Ancona 
of  1397,  the  word  varea  is  used  to  denote  the  contribution 
itself  (d).     And  in  a  Venetian  code  of  the   14th  century 
we  find  the  phrase,  dividatur  per  avariam,  used  to  express 
a  general  contribution  [e).      All    sorts  of  theories  have 
been  propounded  as  to  the  origin  of  this  word  average, 
which  in  this  sense  is  universal  in  all  the  languages  of 
Europe  under  various  thin  disguises,  as  avarie^  haverei,  and 
the  like  (/).     These  theories,  however,  are  purely  con- 
jectural, whereas  here  we  have  something  like  tlie  vestiges 
of  the  actual  growth  of  this  peculiar  technical  expression. 
We  must,  in  the  next  place,  direct  our  attention  to 
the  g-reat  revolution  in  maritime  commerce,  which  took 


[a)  4  Pard.  580-1.  Professor  Skeat's  Etj'mological  Dic- 

(6)  lb.  593.  tionary.     The  learned  Professor,  one 

(c)  lb.  521.  of    tbe   greatest  authorities   on   the 

(d)  5  Pard.  139.  etymology  of  the  English  language, 

(e)  lb.  97.  says  that  the  word  is  a  Mediterranean 
(/)  See  Manley  Hopkins'  Hand-  maritime  term  of  imknown  origin. 

book  of  Average,  4th  ed.  p.  3  et  seq.,  In    the    New    English    Dictionary, 

where  the  different  meanings  and  the  edited    by   Sir    James    Murray,    its 

derivation  of  the  word  are  discussed  derivation  is  also  stated  to  be  un- 

at  length.     See  also  "Average,"  in  certain. 


INTRODUCTION. 

place  when  merchants  gave  up  their  migrator}^  habits, 
and  began  to  cany  on  their  business  from  counting- 
houses  on  shore,  by  means  of  factors  or  agents,  or 
branch-houses,  at  the  principal  ports  with  which  they 
traded.  This  great  change  was  certainly  originated  by 
Italians.  The  great  merchant  cities  of  Lombardy,  and 
especially  Genoa,  Pisa,  Florence,  and  Venice,  held,  in 
the  14th  and  15th  centuries,  a  position  at  the  head  of 
maritime  commerce  which  it  is  difficult  for  us  now  to 
realize.  It  is  enough  to  say,  that  they  were  the  sea- 
carriers  of  the  world  in  a  far  greater  degree  than  we 
have  a  right,  at  the  present  day,  to  use  that  title  for  this 
country  {g).  Each  city  was  an  independent  republic, 
and  the  leading  merchants,  as  the  wealthiest,  soon  began 
to  busy  themselves  in  politics,  and  become  persons  of 
importance  on  shore.  Their  long  voyages  grew,  no 
doubt,  extremely  inconvenient.  It  became  absolutely 
necessary  to  invent  some  wholesale  system  of  delegation. 
The  faculty  of  invention  was  not  wanting  to  the  quick- 
witted Italians,  at  that  time  by  far  the  most  highl}^ 
cultivated  people  in  Europe.  Accordingly,  within  no 
very  great  space  of  time,  the  many  remarkable  inven- 
tions necessary  to  complete  the  complicated  machinery 
of  modern  commerce,  followed  one  another :  bills  of 
exchange,  book-keeping  by  double  entry,  an  elaborate 
system  and  law  of  commando  or  agency,  and  marine 
insurance,  being  among  the  number.  Then,  by  degrees, 
owners  of  cargo  began  to  live  ashore,  a  habit  Avhich 
naturally  spread   until  it  became  practically  universal. 


((/)  In  the  reign  of  our  Henry  IV.,  us  China,  was  brought  to  the  West 

as  \vc  karn  from  Marshall  in  his  book  of  Europe,  and  were  formidable  com- 

on  Insurance,  the  Italians  were  the  petitors  elsewhere,  so  that  the  English 

monopolizers  of  the  commerce  of  the  merchants  petitioned  Parliament,  but 

Mediterranean,  through  which  chan-  in  vain,  to  be  jirotected  against  them, 

nel  aU  the  wealth  of  the  East,  as  far  (1  Marsh.  Ins.  13  (2nd  edit.).) 


13 


14  INTRODUCTION. 

This  absence  of  the  merchants  inevitably  led  to  a  great 
increase  in  the  power  and  responsibility  of  the  master, 
particularly  on  occasions  such  as  a  jettison  or  sacrificing 
of  a  part. 

At  this  time,  not  improbably — though  we  have 
no  trace  of  it — may  have  arisen  a  question  which  has 
occasionally  been  discussed  of  late,  namely,  whether  this 
ancient  system  of  a  general  contribution  towards  sacri- 
fices for  the  common  safety  might  not  with  advantage 
be  abolished,  as  no  longer  necessar\^  for  the  carrying  on 
of  modern  commerce.  The  master,  it  might  be  said, 
has  no  longer  any  interested  resistance  on  the  part  of 
a  passenger  to  overcome,  and  no  advice  to  ask  ;  if  he 
must  elect  upon  occasions  between  destroying  a  part  and 
losing  the  whole,  let  him  be  free  to  do  so  on  his  own 
responsibility,  and  let  his  decision  be  accepted  as  among 
the  perils  of  the  sea.  Merchant  and  shipowner  can 
protect  themselves  by  insurance.  The  result  in  the  long 
run  will  be  much  tlie  same,  and  there  will  be  less  fric- 
tion and  complication.  Perhaps  a  wise  instinct  pre- 
vented such  counsels  from  being  offered  at  that  time. 
It  may  have  been  felt  that  the  most  questionable  feature 
in  this  revolution  in  commerce  was  tlie  leaving  to  the 
master,  or  to  the  master  and  mariners  at  most,  the  entire 
responsibility  for  this  sacrificing  of  part  for  the  whole  in 
time  of  danger.  It  is  a  task  of  the  utmost  difficulty  and 
the  most  vital  importance.  "On  its  being  performed 
with  coolness,  courage,  and  discretion,"  it  has  been  well 
said,  "the  whole  property,  and  the  lives  of  all,  depend." 
Nothing  can  more  tend  to  the  preservation  of  life  and 
property  at  sea  than  that  the  officer  entrusted  with  this 
important  function  should  be  protected  in  the  exercise 
of  it  from  whatever  may  tend  to  bias  or  disturb  his 
judgment  at  that  critical  moment.     He  is,  however,  the 


INTRODUCTIOX, 


15 


paid  servant  of  the  shipowner,  liable  to  dismissal  if  he 
displeases  him.     How  is  he  to  avoid  partiality,  or  the 
suspicion  of  partiality,  when   he  has  to   determine   by 
what  sacrifice  he  shall  avert  a  common  danger,  and  to 
choose,  perhaps,  between  a  jettison  of   cargo  and    the 
cutting  away  of  a  mast,  or  bearing  up  for  a  port  of 
refuge  ?     Will  there  not  be  frequent  complaints,  well  or 
ill-founded,  by  the  merchant  or  his  underwriters,  that 
a  costlier  sacrifice  of  cargo  has  been  preferred  when  a 
measure  less  destructive,  but  involving  a  loss  to  the  ship- 
owner would  have  been  equally  effectual  ?     The  rule  of 
a  general  contribution,  on  the  other  hand,  by  rendering 
it  immaterial  whose  property  is  taken   in  the  first  in- 
stance,  and   material    only  that   that   sliould   be  taken 
which  will  most  surely  and  effectually,  and  at  least  cost, 
save  the   whole,   does    away  with    this    conflict   in   the 
captain's  mind  between  interest  and  duty,  leaves  him 
alone  with  purely  nautical  considerations,  and  thus,  no 
doubt,  does  more  than  any  statesman  or  philanthropist 
can  effect  for  the  preservation  of  life  and  property  at 
sea.     The  utility  of  the  rule  of  general  average  thus  no 
doubt  explains  its  universality  and  permanence. 

Coming  now  to  a  much  later  period,  between  the  ^'^j?°^^®'* 
years  1556  and  1584,  we  find,  in  the  remarkable  treatise 
called  the  Guidon  de  la  Mer  (h),  the  first  express  definition 
of  general  average.  This  work  is  a  digest,  or  unau- 
thoritative code,  of  the  law  of  insurance,  apparently 
intended  for  the  use  of  the  then  newly  constituted  con- 
sular court  of  Rouen.  Incidentally,  however,  it  touches 
on  other  branches  of  maritime  law,  such  as  affreightment, 
bottomry,  and  general  average. 

"  The  insurer,"  it  says,  "  is  bound  to  indemnify  his  merchant  for 
the  expenses,  losses  (mises),  averages,  and  damage  which  occur  to 

{]')  For  a  fuller  account  of  the  Guidon,  see  Lowndef?,  Marine  Insurance, 
Intr.  xxiv. 


16  INTRODUCTION. 

the  inerchaudize  i'roiu  the  time  of  loading,  the  whole  of  which  is 
comprised  in  this  word  average,  which  receives  several  divisions. 
The  first  is  called  common  or  gross  average,  that  which  arises  by 
jettison,  for  ransom  or  composition,  for  cables,  sails,  or  mast  cut  for 
the  saving  of  the  ship  and  merchandize,  the  compensation  for  which 
is  levied  upon  (se  prend  sur)  the  ship  and  merchandize;  for  which 
reason  it  is  called  conwion''   (i). 

Ordonnanceof  The  Orclonnaiice  of  Louis  XIV,,  in  1681,  gave  the 

force  of  law  to  a  definition  of  general  average,  evidently 
modelled  upon  this  of  the  Guidon.  ''  Every  extraordi- 
nary expense,"  it  says,  "  which  is  made  for  the  ship 
and  merchandize  conjointly  or  separately,  and  every 
damag-e  that  shall  occur  to  them  from  their  loadins^ 
and  departure  until  their  return  and  discharge,  shall  be 
reputed  average.  Extraordinary  expenses  for  the  ship 
alone,  or  for  the  merchandize  alone,  and  damage  which 
occurs  to  them  in  particular,  are  simple  and  particular 
average  ;  and  extraordinary  expenses  incurred,  and 
damage  suffered,  for  the  common  good  and  safety  of 
the  merchandize  and  the  vessel,  are  gross  and  common 
average.  Simple  averages  are  borne  and  paid  by  the 
thing  which  shall  have  suffered  the  damage  or  caused 
the  expense,  and  the  gross  and  common  shall  fall  as 
well  upon  the  vessel  as  upon  the  merchandize,  and  shall 
be  equalized  over  the  whole  at  the  shilling  in  the  pound  " 
(«M  sol  la  livre)  (k). 

The  Ordonnance  set  an  example  which  was  followed 
throughout  Europe.  In  1721  was  published  the  Ordi- 
nance of  Rotterdam,  which  in  like  manner  begins  with 
a  definition,  in  terms  almost  identical:  "All  damage 
arising  from  anything  that  is  voluntarily  done  for  the 
preservation  of  ship  or  goods,  or  for  preventing  greater 

(/)  2    Pard.    387.      Examples    of      taken  from  the  Digest, 
general  average  are  afterwards  given  (/.)  Ord.  tit.  7,  Arts.  2,  3 :  4  Pard. 

(ib.  392-6),  some  of  them  evidently       3S0. 


INTRODUCTION. 

and  more  apparent  niiscliief,  shall  be  deemed  general 
average,  and  be  borne  by  ship  and  cargo  "  (1).  The 
Ordinance  of  Bilbao  says:  "A  gross  average  is  that  which 
arises  from  the  means  interposed  to  free  the  ship  and  its 
lading  from  shipwreck  or  loss"(w^j. 

England    was    almost    the    only    maritime    country 
which  did  not  possess  a  code  of  sea-law.     Its  early  com- 
mercial legislation  appears  to  have  been  regulated  by  the 
merchants  themselves.     The  name  of  Lombard  Street  on 
our  policies  of  insurance  still  attests  the  tradition  which 
attributes    to    settlers    from    the    Lombard    cities,   early 
branch  houses  probably  in  the  times  of  the  Medici,  the 
introduction  amongst  us  of  the  practice  of  marine  insur- 
ance.    Pardessus  gives  the  text  of  a  statute  of  the  time 
of  William  L  concerning  jettison ;  which,  however,  is  not 
to  be  found  in  our  statute  book,  and  cannot  be  safely 
treated  as  authentic  (w).     A  statute  of  Elizabeth  informs 
us  that  questions  of  insurance  and  trade  had  heretofore 
been  dealt  with  by  certain  older  merchants,  "  grave  and 
discreet   persons,"    appointed    by   the    Lord    Mayor    of 
London,  "  as  men  by  reason  of  their  experience  fittest  to 
understand  such  matters  "  (o).     This  statute  constituted  a 
special  mercantile  tribunal  to  take  their  place ;  but  this 
tribunal   never   found    much   favour   amongst    the   mer- 
chants, and  speedily  fell  into  decay  (/j).     Li  the  mean- 
while, as  we  learn  from  such  books  as  Beawes,  Magens, 
and  others,  published  by  mercantile  men  for  use  among 
themselves,  the  rules  followed  in  these  matters  consisted 
of  a  body  of  customs,  in  whicli  were  embedded  provisions 
borrowed  without  visible  discrimination  from  the  various 

{I)  2  Magens,  95.    The  Ordinances  (?«.)  2  Mag.  39(5. 

of  Stockholm  (a.d.  1750),  of  Konigs-  («)  4  Pard.  203. 

berg  (1730),  and  of  Hamburg  (1731),  (o)  1  Marsh.  Ins.  p.  25. 

contain  similar  definitions.     (2  Mag.  ( />)  lb.  p.  26. 
204,  236,  279.) 

L.  C 


17 


18  INTRODUCTION. 

codes  and  soa-laws  of  all  the  countries  of  Europe.  When, 
in  London,  Mr.  Lloyd's  coffee-house  came  to  be  the 
head-quarters  of  the  business  of  marine  insurance,  it 
became  also,  naturally,  the  head-quarters  of  information 
as  to  these  customs,  which  hence  acquired  the  familiar 
title  of  "  the  customs  of  Lloyd's." 

It  is  not  till  the  year  1799,  I  believe,  that  we  tind 
anv  trace  of  the  term  g-eneral  average  in  the  Eno-lish 
courts  of  law.  "  General  average,"  said  Lord  Stowell,  in 
the  Court  of  Admiralty,  ^'  is  for  a  loss  incurred,  towards 
which  the  whole  concern  is  bound  to  contribute  pro  ratd^ 
because  it  was  underoone  for  the  o;-eneral  benefit  and 
preservation  of  the  whole "  {q).  This  definition  was 
practically  superseded  by  one  laid  down  two  years  later 
in  the  Court  of  King's  Bench  by  Mr.  Justice  Lawrence, 
in  the  case  of  Birkley  v.  Presgrave  (/■),  on  which,  as  will 
be  shown  in  the  following  chapter,  the  English  law  of 
general  average  has  been  constructed. 

((/)  The  Cvpenlmgm  (1799),  1  Chr.  Select  Cases  of   Evidence,  58.     See 

Eob.  289.     The  word  "  average  "  to  also  S^/iejoparrf  v.  PFWgr^<(  1698),  Show, 

denote  a  general  average  contribu-  P.  C.  18. 

tion  is,  however,  found  in  the  report  {r)  Birldeij  v.  Pres<jrave  (ISOl),  1 

of  Hicks  V.  PaUugton  (lo9U),  Moore,  East,  at  p.  228. 
297,  and  of  Marsham  v.  Dutrey  (1719), 


.  J9 


CHAPTER  I. 


DEFINITION  AND  GENERAL  PRINCIPLES. 

SECT.  PAGE 

1.  Division  of  the  subject    19 

2.  Definition     21 

3.  True  origin  of  this  riyht     26 

4.  Danger  must  not  be  from  fault  of  claimant 31 

5.  Consequences  :   rules  as  to 39 

6.  Sundry  undetermined  questions  — 

(a)  Is  eventual  success  necessary  ? 42 

(b)  What  quantum  (f  danger  is  requisite  '<'   43 

(c)  Distinction     between     extraordinary    in    kind    and    in 

degree 46 

(ja.   Must  the  sacrifice  be  the  act  of  the  master  Y 48 

6b.    General  average  is  peculiar  to  maritime  adventures 52 


§  1.  We  find,  then,  that  the  entire  community  of  sea-  Division  of 
faring-  men  and  traders  by  sea  have  from  the  earliest  ^  "^  ^"  ^^^ ' 
recorded  times  to  the  present  day  been  of  one  mind  in 
this  particular :  that  what  is  in  time  of  danger  given  or 
sacrificed  for  the  sake  of  all  shall  be  replaced  by  the 
contribution  of  all.  The  Rhodian  maxim,  and  the  defi- 
nition of  Mr.  Justice  Lawrence,  are  substantially  the 
same.  The  ordinary  conditions  of  the  contract  of 
affreightment,  the  ordinary  relations  between  master, 
shipowner,  and  merchant,  and,  of  course,  the  motives  of 
natural  justice  and  utility,  being  the  sanie  in  all  countries, 
it  might  have  been  expected  that  the  practical  \vorkin<>- 
out   of    tliis   simple    principle  would    have    been    in    all 


c2 


20 


DEFINITION  AND  GENERAL  PRINCIPLES.       [CHAP.  I. 

countries  the  same.     This,  however,  is  by  no  means  the 
case :  there  are  very  material  variations.     This  fact  of 
itself   proves  that    there   must   be   something  wrong  or 
imperfect  in  the  law  of  some  country ;  and  as,  in  maritime 
commerce,  the  dealings  of  one  country  with  another  are 
so  closely  interwoven  that  each  runs  the  risk  of  suffering 
if  the  sea-laws  of  another  are  faulty,  strenuous  efforts 
have  been   made   to  bring    about  an  international   uni- 
formity in  this  matter  of  general  average.     This  under- 
taking  I   do   not    liere    speak    of   except    as    something 
theoretically  desirable  in   the   future,   the   existence   of 
which  strongly  points  the  moral,  that  general  average  as 
it  is    in   theory,    and   general    average    as  it    is  in  the 
existing  law  and   practice  of  any  individual  community, 
are  two  different  things.     Our  business  at  present  is  to 
ascertain  what  is  in  fact,  at  this  day,  general  average, 
as  accepted  in  the  law  and  practice  of  Great  Britain. 
This    must    be    studied    in    the  main    in    the    historical 
method,  and   principally  by  setting  forth,  in  order,  and 
with  as  much  fulness  as  may  enable  us  to  understand  the 
reasons  which  influenced  the    judges,  the   decisions  on 
each  material  point.     The  division  of  the  subject  is  in 
its  nature  remarkably  simple.     It  falls  under  two  main 
questions :    first,    what    losses    or    expenses    are    to    be 
replaced  bv  contribution ;  secondly,   how  is  the  contri- 
bution to  be  regulated,  or  adjusted.     The  first  question, 
which  is  by  far  the  most  difficult  and  important,  is  con- 
veniently divided  under  three  principal  heads :  sacrifices 
of  cargo,  sacrifices  of  parts  of  the  ship,  and  extraordinary 
expenses.     This  forms  the  subject  of  the  four  following 
chapters.     In  the  present   chapter  I  propose  to  discuss  a 
few  preliminary  questions,  which   do   not  conveniently 
fall  under  either  of  these  main  divisions. 


SECT.  II.] 


DEFINITION. 


21 


§  3.  We  may  begin  by  examining  the  precise  form  Definition. 
in  which   the   definition    of    general    average    has  been 
adopted  into  the  law  of  England. 

The  first  modern  case  in  which  the  sanction  of  an 
English  court  of  common  law  was  given  to  tlie  principle  of 
general  average  was  that  of  Birkleij  v.  Fresgrave{a)^  in 
1801.  The  principle,  indeed,  does  not  appear  to  have 
been  contested  at  the  trial  of  this  case,  but  is  treated  in 
argument  as  a  thing  long  established  and  well  known, 
and  the  dispute  was  only  as  to  some  particular  point 
of  its  application  {h).  One  of  the  judges,  however, 
Lawrence,  J.,  began  the  argument  of  his  judgment  with 
the  following  sentence : — "''All  loss  which  arises  in  consequence 
of  extraordinary  sacrifices  made  or  expenses  Incurred  for  the 
'preservation  of  the  ship  and  cargo  comes  tvithin  general  average^ 
und  must  he  home  proportionahly  hy  all  who  are  interested''''  (c). 


(a)  1  East,  220. 

{b)  See  below,  §  23. 

(r;)  1  East,  at  p.  228.  The  words 
"all  loss"  in  this  definition,  said 
Gorell  Barnes,  J.,  in  The  Leitrim, 
[1902]  P.  256,  266,  must  be  read 
with  some  limitation  ;  they  ought 
not  to  cover  losses  which  ' '  are  the 
result  of  '  accidental  circumstances ' 
affecting  the  loser,  and  are  not  losses 
which  the  other  persons  interested 
ought  in  ordinary  course  to  be  treated 
as  concerned  with."  On  this  prin- 
ciple jettisoned  goods  are  valued  at 
their  market  price  at  the  time  when 
they  would  have  arrived,  though 
theii"  owner  may  have  sold  them, 
"  to  arrive,"  at  a  higher  price.  (See 
post,  p.  337.)  In  The  Leitrim  the 
shipowners  were  claiming  for  a  loss 
of  time  freight,  under  a  cesser-of-hire 
clause  iu  the  time  charter,  while 
general  average  damage  was  being 
rejtaired,  and  one  of  the  grounds  on 
which  the  learned  judge  held  that 


they  could  not  recover  was  that  the 
contract  between  the  shipowners  and 
the  time  charterers  was  a  matter 
with  which  the  owners  of  the  cargo 
were  not  concerned,  and  the  loss  of 
freight  under  it  the  result  of  an 
accidental  circumstance  peculiar  to 
the  shipowners  and  the  time  char- 
terers. Mr.  Carver  (§  435)  criticises 
this  part  of  the  judgment,  saying 
that  the  obligation  to  contribute  does 
not  depend  upon  privity  of  the  con- 
tributor to  any  conti-act  with  the 
owner  of  the  thing  sacrificed.  As  he 
points  out,  tlift'erent  portions  of  a 
cargo  contribute  inter  se  without  any 
such  privity.  Further,  one  cargo- 
owner  contributes  to  a  loss  of  freight 
on  the  goods  of  other  cargo-owners 
under  contracts  of  carriage  to  which 
he  is  not  a  party.  It,  therefore, 
seems  impossible  to  maintain  the 
rule  laid  down  by  the  learned  judge, 
if  it  implies  that  a  loss,  arising 
directly  out  of  a  contract  made  be- 


22 


DEFINITION  AND  GENERAL  PRINCIPLES.       fCHAP.  I. 


Other 
definitions. 


This  sentence  is  almost  identical  with  the  definition 
given,  in  1681,  in  the  Ordonnance  of  Louis  XIV.  :  "  Ex- 
traordinaiy  exjDenses  incurred,  and  damaf>:e  suffered,  for 
the  common  good  and  safety  of  the  merchandize  and  the 
vessel,  are  gross  and  common  average  .  .  .  and  shall  be 
equalized  over  the  whole  [ship  and  merchandize]  at  the 
shilling  in  the  pound  "  [au  sol  la  Uvre)[d). 

The  words  of  Lawrence,  J.,  which  may  be  regarded 
as  a  slight  iniprovement,  in  form  certainly,  on  those  of 
the  Ordonnance,  have  naturall}^  been  always  treated  as  of 
the  highest  authority,  and  have  been  cited  again  and 
again  in  our  courts  till  this  sentence  has  become  a  sort  of 
axiom.  It  is  ado])ted  and  used  as  a  test  in  Covington  v. 
Roberts  {e),  and  in  Job  v.  Langton{f).  "  It  has  been  con- 
sidered," says  Brett,  M.  E.,  "to  be  one  of  the  many 
happ}-  expositions  of  mercantile  law  made  b}  that  learned 
person,  in  terms  so  broad  and  yet  so  accurate,  as  show 
that  he  was  one  of  the  greatest  mercantile  lawyers  who 
has  ever  adorned  our  profession  in  this  country  "  [g). 
In  this  case,  also,  the  learned  judge  uses  this  sentence  as 
a  test. 

Variations,  substantially  however  amounting  to 
much  the  same  thing,  have  been  offered  by  other  judges. 
"  In  order,"  says  Blackburn,  J.,  ''  to  give  rise  to  a  charge 


Ween  parties  to  the  common  mari- 
time adventure  can  never  be  treated 
as  a  general  average  loss  as  against 
another  party  to  the  adventure  who 
is  not  a  party  to  the  contract.  But 
Gorell  Barnes,  J.,  does  not  use  the 
word  "privity"  in  his  judgment, 
and  probably  did  not  intend  to  lay 
down  so  wide  a  projDosition.  Another 
ground  of  his  decision,  to  which  Mr. 
Carver  does  not  take  exception,  is 
that  the  loss  of  time  was  common  to 
all  the  parties  interested,  and  there- 


fore might  be  left  out  of  considera- 
tion. 

((/)  Ord.  Louis  XI Y.  tit.  7,  Arts.  2 
and  3 :  4  Pardessus,  ;380.  I  may 
add  that  the  substitution  of  the 
word  " presei-vation "  for  "good  and 
safety  "  is  a  real  and  important  im- 
provement.    (See  below,  §  6.) 

(e)  (1.S06),  2  B.  &  P.  (N.  E.)  379. 

(/)  (1857),  6  E.  &  B.  779,  at  p.  790. 

(r/)  Svendsen  v.  Wallace  (1884),  13 
(i.  B.  D.  69,  at  p.  73. 


SECT.  II.]  DEFINITION.  ^3 

as  general  average,  it  is  essential  that  there  should 
be  a  voluntary  sacrifice  to  preserve  more  subjects  than 
one  exposed  to  a  common  jeopardy.  An  extraordinary 
expenditure  incurred  for  that  purpose  is  as  much  a 
sacrifice  as  if,  instead  of  money  being  exj^ended  for  the 
purpose,  money's  worth  were  thrown  away.  It  is  imma- 
terial whether  a  shipowner  sacrifices  a  cable  or  an  anchor 
to  get  the  ship  off  a  shoal,  or  \rciy^  the  worth  of  it  to 
hire  those  extra  services  which  get  her  off"  (h).  "  The 
claim  for  general  average  arises,"  said  Wilde,  C.  J., 
"  where  part  of  a  cargo  or  ship  is  destro3^ed  in  order  to 
rescue  the  remainder  from  some  impending  peril.  If, 
during  a  voyage,  by  stress  of  weather  or  otherwise,  a 
vessel  is  in  immediate  danger  of  being  lost,  and  part  of 
the  cargo  is  thrown  overboard,  or  a  mast  is  cut  away,  as 
a  means  of  preventing  the  total  loss  of  vessel  and  cargo, 
that  loss,  being  incurred  for  the  common  benefit  of  all 
concerned,  shall  not  be  sustained  by  the  owner  of  the 
ship  alone,  but  by  a  general  contribution  from  all "  (z). 
"  It  is  a  loss,"  says  Lord  Kingsdown,  "  incurred  for  the 
general  benefit  of  the  ship  and  cargo,  to  which  those 
who  have  received  the  benefit  are  by  law  liable  to  con- 
tribute rateably  "  (k).  A  more  recent  definition  is  one 
given  by  a  late  Master  of  the  Rolls,  Lord  Esher  : 
"Wherever  under  extraordinary  circumstances  of  dang(;r 
to  both  ship  and  cargo,  a  voluntary  sacrifice  of  money  " 
(read,  property  or  money)  "  is  made,  in   order  to  save 

{h)  Kemp  V.  FIaUi<l,nj  (1865),  6  B.  (N.   S.)  563,   at  p.   583;   Fletcher  v. 

&  S.  723,  at  p.  746;    34  L.  J.  (Q.  B.)  Alexander  (1868),  L.  R.  3  C.  P.  375, 

233,  at  p.  242.  at   p.   381  ;     Walthew    v.    Mavrojani 

(i)  Hal/ett  V.  Wi'jrairi  (1850),  9  C.  B.  (1870),  L.  E.  5  Excli.  116,  at  p.  124  ; 

580,  at  p.  601;   19  L.  J.  (C.  P.)  281,  Steiuart  v.    West   India   and    Pacific 

at  p.  288.  8.S.  Co.  (1873),  L.  E.  8  Q.  B.  88,  at 

(/«)  Car^o  ex  (ro/a?/;  (1863),  33  L.  J.  p.  93  ;    U'/iitecross  Wirr  Co.  v.  SariU 

(Adm.)  97,  at  p.   102.     See  further  (1882),  8  Q.  B.  D.  653,  at  pp.  661, 

Johnson  v.  Chapmai,  (1865),  19  C.  B.  662. 


24 


DEFINITION  AND  GENERAL  PRINCIPLES.       fCHAP.  I. 


both  ship  and  cargo,  by  the  expenditure  of  which  both 
sliip  and  cargo  are  saved,  the  person  who  has  made  the 
voluntary  sacrifice  is  entitled  to  call  upon  the  others, 
whose  property  has  been  saved  by  the  vohmtary  sacrifice 
made  on  their  behalf  as  well  as  his  own,  for  o-eneral 
average  contribution  "  (/).  Another  definition  is  that 
given  by  Bovill,  C.  J.  :  "If  loss  or  expense  is  occasioned 
by  reason  of  some  extraordinary  course  taken,  or  risk 
incurred,  for  the  benefit  of  all  concerned,  then  those 
who,  by  reason  of  their  being  exposed  to  a  couniion 
danger,  are  interested  in  that  course  being  taken,  or 
that  risk  incurred,  must  contribute  their  share  "(m). 
Transition  to  Jt  may  be  doubted,  however,  whether  any  one  of 

definition  m  *'  ' 

Rhodianiaw.  thcse  definitions  of  general  average  equals,  in  accuracy 
and  concise  fulness,  the  original  maxim  of  the  Rhodian 
law,  which  in  so  few  words  gives  the  rule,  the  reason 
for  it,  and  a  typical  example  (n). 

"  General  average,"  says  Lord  Blackburn,  in  a  very 
recent  case,  ''is  founded  on  the  Rhodian  law;  which, 
however,  in  terms  did  not  extend  further  than  to  cases 
of  jettison,  but  its  principle  applies  and  it  has  been 
applied  to  all  other  cases  of  voluntary  sacrifice  for  the 
benefit  of  all,  that  is,  if  properly  made  "  {o) 

Thus  it  will  be  seen  that  the  English  Courts  have,  as 
a  matter  of  history,  received  the  maxim  of  the  Rhodian 


(?)  Ocean  t-^tfamship  Co.  v.  Andt-r- 
son  (1883),  13  Q.  B.  D.  651,  at  p.  662. 

(jfi)  Walthnv  v.  Mavrojani  (1870), 
L.  E.  5  Exch.  116,  at  p.  120. 

[n)  See  tlie  judgment  of  Watkin 
Williams,  J.,  in  Pirit  v.  Middle  Duck 
Co.  (1881),  4  Asp.  Mar.  Law  Ca.  388, 
at  p.  390.  Parsons,  referring  to  this 
maxim,  says:— "This  law  was  in 
force  in  the  commerce  of  the  Medi- 
terranean and  Adriatic  soas  more 
than   a  thousand    years   before  the 


Christian  era;  nor  can  there  be  a 
better  definition  of  the  law  of  general 
average  as  it  is  in  force  to-day." 
(Parsons,  Law  of  Shipping,  Boston, 
1869,  p.  339.) 

(o)  Anderson  v.  Octuu  .s..S.  Co. 
(1884),  10  App.  Gas.  107,  at  p.  114. 
As  to  these  last  three  words,  see 
below,  §  4.  See  also  Burton  v. 
EnfiHsh  (1883),  12  Q.  B.  D.  218; 
post,  p.  28. 


SECT.  II.]  DEFINITION.  '^^ 

law  through  the  medium  of  the  Oidonnance  of  Louis XIV.; 
and  in  kiter  times  some  of  our  most  eminent  judges 
have  shown  an  inclination,  instead  of  dwelling  over- 
closely  on  the  words  of  Lawrence,  J.,  to  direct  their 
attention  to  the  original  source. 

[Section  66  of  the  Marine  Insurance  Act,  1906, 
contains  a  definition  of  general  average  losses  which,  as 
general  average  has  the  same  meaning  in  contracts  of 
marine  insurance  as  it  bears  between  the  parties  engaged 
in  a  maritime  adventure,  will  no  doubt  be  cited  hence- 
forth as  the  authoritative  one.     It  is  as  follows  : — 

Sub-sect.  1 .  A  general  average  loss  is  a  loss  caused  by  or  directly 
consequential  on  a  general  average  act.  It  includes  a  general 
average  expenditure  as  weU.  as  a  general  average  sacrifice. 

Sub-sect.  2.  There  is  a  general  average  act  where  any  extra- 
ordinary sacrifice  or  expenditure  is  voluntarily  and  reasonably  made 
or  incurred  in  time  of  peril  for  the  purpose  of  preserving  the  pro- 
perty imperilled  in  the  common  adventure. 

In  Monigomer/j  v.  Indemnit//  Mutual  Marine  Insurance  sacrifice  in 
Co.  {oo),  it  is  suggested  in  the  judgment  of  the  Court  of 
Appeal  that  a  sacrifice  made  "  in  fear  of  death,"  but  not 
apparently  for  the  purpose  of   saving  property,  may  be 
general  average. 

"  It  is  not,  we  think,  true,"  says  Vaughan  Williams, 
L.  J.,  delivering  the  judgment  of  the  Court,  "  to  say 
that  it  is  only  the  danger  to  the  ship,  freight  or  cargo 
wdiich  necessitates  and  justifies  sacrifice  by  the  master  of 
either  a  portion  of  the  cargo  or  a  portion  of  the  ship. 
This  may  be  done  in  fear  of  death,  and  if  it  be  done 
upon  a  proper  occasion  all  must  contribute  to  the  loss." 

In  practice  the  case  is  not  likely  to  arise  in  which 
the  ship  and  cargo  are  not  imperilled  by  a  danger  which 
threatens  the  lives  of  the  persons  on  board  the  vessel ; 
and  if  tlie  effect  of   sacrificing  part  of  the  property  in 

(oo)  [1902]  1  K.  B.  734,  at  p.  740. 


26 


DEFINITION  AND  GENERAL  PRINCIPLES.       [_CHAP.   L 


fear  of  death  has  been  to  save  that  wliicli  remains,  it 
may  well  be  that  a  Court  would  not  inquire  whether  the 
saving  of  the  property  was  actually  in  the  mind  of  the 
master  when  he  directed  the  sacrifice,  but  would  impute 
such  a  motive  to  him.  Yet  if  there  could  be  a  case  in 
wdiich  a  portion  of  the  ship  or  cargo  has  been  sacrificed 
in  fear  of  death,  without  any  expectation  or  possibility 
of  advantage  to  the  owners  of  the  property-  which 
remains,  there  are  no  authorities  except  this  dictum 
which  support  the  view  that  there  would  be  a  liability 
to  contribute  to  general  average  (/>).] 


§  eS.  A  still  deeper  question  lias  latterlv  b^^en  dis- 
cussed in  our  courts  :  Is  the  right  to  general  average 
founded  on  authority  merely,  no  matter  whether  that  of 


True  origin 
of  the  right 
to  general 
average ; 
whether 

or  contract.  "  the  Rhodian,  or  Roman,  or  of  any  later  positive  law,  or 
of  immemorial  custom,  or  on  some  more  primar)^  grounds? 
and,  if  the  latter,  are  they  grounds  of  natural  equity  or 
utility,  or  do  they  rest  on  some  contract  between  the 
parties,  originally  perhaps  express,  but  which  in  course 
of  time  has  come  to  be  constantly  implied,  or  on  some 
theory  as  to  ao-encv  ? 

Older  English  The  older  English  law  writers  on  average,  probably 

law  writers.  n         •  •  o        i  ^ 

following   Emerigon   and   other   French  lawyers,   based 


( p)  The  definition  of  a  general  ave- 
rage act  in  the  Marine  Insurance  Act, 
1906  {supra,  p.  25),  seems  opposed  to 
the  dictum.  In  The  Gratitudine  (see 
infra,  p.  56),  Lord  Stowell  says  that  in 
cases  of  extreme  necessity,  when  the 
lives  of  the  crew  cannot  otherwise  be 
saved,  the  whole  cargo  may  be  thrown 
overboard,  and  the  ship  must  con- 
tribute its  average  proportion ;  but 
the  case  which  he  puts  is  evidently 
one  in  which  the  object  is  to  save  the 
lives  of  those  on  board  by  prcser\'ing 
the  vessel.     It  may  also  bo  pointed 


out  that  general  average  is  in  many 
respects  analogous  to  salvage,  and 
that  there  was  no  power,  until  it  was 
given  by  statute,  to  remunerate  the 
salvor  of  life  onlj-,  at  the  expense  of 
the  property.  The  statement  in 
Mouse's  case  (see  -post,  p.  55),  that 
' '  everyone  ought  to  bear  his  loss  tor 
the  safeguard  and  life  of  a  man " 
may  also  be  cited ;  but  it  cannot 
safely  be  assumed  that  the  Court  in 
making  it  had  the  question  of  general 
average  in  mind. 


SECT.  III. J  TRUE  ORIGIN  OF  THIS  RIGHT.  27 

this  right  simply  on  natural  justice.  Lord  Tenterden, 
for  example,  speaks  in  this  sense  i^q) :  and  Park,  J.,  in 
his  valuable  book  on  insurance,  says,  concerning  general 
average:  "This  obligation  ....  is  founded  on  the 
great  principle  of  distributive  justice ;  for  it  would  be 
hard  that  one  man  should  suffer  by  an  act  which  the 
common  safety  rendered  necessary,  and  that  those  who 
received  a  benefit  from  that  act  should  make  no  satisfac- 
tion to  him  who  had  sustained  the  loss"(r). 

Such  considerations  and  even  phrases  as  natural  Later  views, 
justice  or  general  utility  as  the  basis  of  rights  between 
contracting  parties,  though  no  doubt  secretly  underlying 
the  decisions  of  our  judges,  do  not  ordinarily  appear 
on  the  surfac-e  so  frequently  as  the  familiar  mediaeval 
notions  of  implied  contracts  or  implied  agency.  Hence, 
in  proportion  as  the  subject  of  general  average  came  to 
be  more  familiar,  it  seems  to  have  been  felt  to  be  more 
consonant  to  the  spirit  of  the  English  common  law,  that 
in  seeking  to  place  this  right  of  contribution  on  a  secure 
basis,  some  implied  contract  or  implied  agency  should, 
if  possible,  be  found  for  it  to  rest  on.  Several  such 
easily  presented  themselves.  It  might  be  supposed,  for 
instance,  that,  at  the  time  of  shipping  or  entering  into  the 
contract  for  shipping  the  goods,  each  shij)per  impliedly 
contracts  with  the  shipowner  and  with  each  other,  that 
the  master  shall  have  authority  in  case  of  danger  to  make 
all  needful  sacrifices,  to  the  expense  of  which  he,  the 
shipper,  will  contribute  his  share  ;  or  it  may  be  supposed 
that  a  similar  engagement  is  made  ])etween  the  parties, 
at  the  moment  of  danger,  treating  them  as  if  on  the  spot, 
as  they  originally  were ;  or,  again,  if  an  implied  agency 
is  preferred,  the  master  may  be   supposed  to  have,  in 

((/)  Abbott  on  Shipping,  oth  edit.  [r)  Park,  Ins.  Nth  edit.  277. 

344. 


28 


DEFINITION  AND  GENERAL  PRINCIPLES.         fCHAP.  I. 


W.  Williams, 
J. 


Lord  Brriiii- 
well. 


Brett,  M.R. 


virtue  of  his  office,  an  authority  to  do  for  each  cargo- 
owner,  as  well  as  for  the  shipowner,  whatever  any  one  of 
those  parties  would  have  had  the  duty  or  the  power  to  do 
had  he  been  on  the  spot ;  so  that  the  master's  act  should 
on  each  occasion  be  taken  to  be,  and  treated  as  if  it  were, 
the  act  of  his  appropriate  principal. 

These  differing  views  of  the  origin  of  this  right, 
though  the  variations  are  obviously  more  of  appearance 
than  reality,  have  of  recent  years  given  rise  to  an 
interesting  discussion  among  some  of  our  judges. 

''It  is  a  law,"  says  Watkin  Williams,  J.,  speaking 
of  the  law  of  general  average,  "  founded  upon  justice, 
public  policy,  and  convenience,  and  rests  ....  upon 
reasons  which  are  so  obvious  that  it  is  not  surprising  to 
find  that  it  is  older  than  any  other  law  or  rule  in  force.  .  .  . 
This  principle  of  law  must,  in  my  judgment,  be  regarded 
as  incorporated  in,  and  forming  part  of,  the  unwritten 
law  of  England  "  (s). 

Lord  Bramwell,  delivering  the  judgment  of  the 
Court  of  Appeal  in  Wright  v.  3Iarwood(J),  said  : — 

"  When  such  sacrifice  is  made,  as  here,  for  the  common  good, 
as  a  rule  it  comes  within  g-eneral  average,  and  must  be  borne  pro- 
portionally by  those  interested.  It  is  not  necessary  to  say  what  is 
the  origin  or  principle  of  the  rule,  but,  to  judge  from  the  way  it 
is  claimed  in  England,  it  would  seem  to  arise  from  an  implied  con- 
tract inter  se  to  contribute  by  those  interested"  (u). 

Subsequently,  in  Burton  v.  English  (.r),  likewise  in 
the  Court  of  Appeal,  Brett,  M.  R.  (Lord  Esher),  criti- 
cised this  passage  in  the  following  terms  : — 

"  How  does  such  a  claim  [for  jettison  of  cargo]  arise?  In  theory 
it  arises  from  an  act  done  by  the  master  of  a  ship,  not  as  the  ser- 

(s)  Pirie  v.  Middle  Dock  Co.  (1881),  (u)  See  to  the  same  effect,  Mac- 

4  Aspinall's  Mar.   Law  Ca.   388,   at  lachlan,     Merchant     Shipping,    4th 

p.  390.  edit.  p.  689  (5th  edit.  p.  734,  n.). 

{t)  (1881),  7  Q.  B.  D.  62,  at  p.  67.  (.t)  (1883),  12  Q.  B.  D.  p.  218. 


SECT.  III. 


TRUE  ORIGIN  OF  THIS  RIGHT, 


29 


vant  of  the  shipowner,  but  as  the  servant  of  the  cargo-owner,  a 
relation  Avhich  is  imposed  on  him  by  the  necessity  of  the  case(?/). 
It  arises  by  reason  of  a  voluntary  sacrifice  by  the  cargo-owner  for 
the  benefit  of  the  ship  and  freight,  and  not  from  any  act  done  for  the 
shipowner  at  all.  By  what  law  does  the  right  arise  to  general 
contribution?  Lord  Bramwell,  in  his  judgment  in  Wright  v.  Mar- 
wood  {z),  considers  it  to  arise  from  an  implied  contract;  but  though 
I  always  have  great  doubts  where  I  differ  from  Lord  Bramwell,  I  do 
not  think  that  it  forms  any  part  of  the  contract  to  carry,  and  that 
it  does  not  arise  from  any  contract  at  all,  but  from  the  old  Rhodian 
laws,  and  has  become  incorporated  into  the  law  of  England  as  the 
law  of  the  ocean.  It  is  not  as  a  matter  of  contract,  but  in  conse- 
quence of  a  common  danger,  where  natural  justice  requires  that 
all  should  contribute  to  indemnify  for  the  loss  of  property  which  is 
sacrificed  by  one  in  order  that  the  whole  adventure  may  be 
saved  "  (a). 


A  little  later  the  same  learned  judge  says  : — 
'■  The  acts  of  the  captain  with    reference    to    properly  or    im- 


{y)  "  Thougli  in  the  ordinary  state 
of  things  the  master  of  a  ship  is  a 
stranger  to  the  cargo,  beyond  the 
purposes  of  safe  custody  and  convey- 
ance, yet  in  cases  of  instant  and  un- 
foreseen and  unprovided  necessity 
the  character  of  agent  and  super- 
cargo is  forced  upon  him,  not  hj  the 
immediate  act  and  a^^pointment  of 
the  owner,  but  by  the  general  polic\' 
of  the  law  ;  unless  the  law  can  be 
supposed  to  mean  that  valuable  pro- 
perty in  his  hand  is  to  be  left  with- 
out protection  and  care."  (Per  Lord 
StoweU,  in  The  Gratitudine  (1801), 
3  Ch.  Bob.  257.) 

' '  The  character  of  agent  for  the 
owners  of  the  cargo  is  imposed  upon 
the  master  by  the  necessity  of  the 
case,  and  by  that  alone.  In  the 
circumstances  supposed,  something 
must  be  done,  and  there  is  nobody 
present  who  has  authority  to  decide 
what  shall  be  done.  The  master  is 
invested  by  presumption  of  law  with 


authority  to  give  directions  on  this 
ground,  that  the  owners  have  no 
means  of  expressing  their  wishes." 
(Per  Lord  Kingsdown,  Duratdy  v. 
Hart  (1864),  2  Moore,  P.  C.  0.  (N.  S.) 
289,  at  p.  321  ;  33  L.  J.  (Adm.)  116, 
at  p.  118.) 

(z)  (1881),  7  Q.  B.  D.  62,  at  p.  67. 

(a)  Burton  v.  English  (1883),  12 
Q.  B.  D.  218,  at  p.  220.  See  also 
Simoiids  V.  White  (1824),  2  B.  &  C. 
805,  at  p.  811,  where  Abbott,  C.  J., 
says:  "The  principle  of  general 
average  ...  is  of  vety  ancient  date, 
and  of  universal  reception  among 
commercial  nations.  The  obHgation 
to  contribute,  therefore,  depends  not 
so  much  upon  the  terms  of  any  par- 
ticular instrument  as  upon  a  general 
rule  of  maritime  law."  He  then 
proceeds  to  say  that  "the  obligation 
may  be  limited,  qualified,  or  even 
excluded  by  the  special  terms  of  a 
conti-act,  as  between  the  parties  to 
the  contract." 


30  DEFINITION  AND  GENERAL  PRINCIPLKS.         lCHAP.  I. 

properly  jettisoning  part  of  tJie  cargo  are  not  both  done  by  him  in 
the  same  capacity;  one  is  done  by  him  as  the  agent  of  the  cargo- 
owner,  and  the  other  as  the  servant  of  the  shipowner  "(b). 

jBowen,  L.J.  Bowen,  L.  J.,  delivering  his  judgment  on  the  same 

case,  sums  up  the  matter  discussed  in  this  section  so  as 
quietly  to  indicate  that  we  are  not,  after  all,  to  suppose 
it  to  be  of  any  great  practical  importance  (c).  He 
says : — 

"  In  the  investigation  of  legal  principles,  the  question  whether 
they  arise  by  way  of  implied  contract  or  not  often  ends  by  being  a 
mere  question  of  words.  General  average  contribution  is  a  principle 
which  comes  down  to  us  from  an  anterior  period  in  our  history,  and 
from  the  law  of  commerce  and  the  sea.  When,  however,  it  is  once 
established  as  part  of  the  law,  and  as  a  portion  of  the  risks  which 
those  who  embark  their  property  upon  ships  are  willing  to  take, 
you  may,  if  you  like,  imagine  that  those  who  place  their  property 
on  board  a  ship  on  one  side,  and  the  shipowner  who  puts  his  ship  by 
the  quay  to  receive  the  cargo  on  the  other  side,  bind  themselves  bj- 
an  implied  contract  which  embodies  this  principle;  just  as  it  may 
be  said  that  those  who  contract  with  reference  to  a  custom  impliedly 
make  it  a  part  of  the  contract.  But  that  way,  though  legally  it  may 
be  a  sound  way,  nevertheless  is  a  technical  way  of  looking  at  it. 
This  claim  for  average  contribution,  at  all  events,  is  part  or  the 
law  of  the  sea,  and  it  certainly  arises  in  consequence  of  an  act  done 

ib)  12  Q.  B.  D.  at  p.  'I'll.  taiu  suck  a  provision  (of.  GraiKje  v. 

(c)  Mr.  Carver  considers  that  the  Taylor.'im^),  20  Times  L.  E.  386), 

matter  may  be  important  in  view  of  it  would  seem  that  as  between  one 

the  practice,  now  very  general,    of  shipper  and   another,    the  ordinary 

stipulating  in  bills  of  lading  that  a  rules   of  law   on  the   subject  must 

particular  code  of  rules  shall  govern  prevail."     The  judgments  of  A.  L. 

the  amount  to  be   paid   in   general  Smith  andVaughan  WiUiams,  L.JJ., 

average.     "Such  a  stipulation,"  he  in   Milhurii    v.    Jamaica   Fruit    Co., 

remarks  (§  364),  "is  binding  as  be-  infra,  also  show  that  the  question, 

tween  each   shipper  and   the   ship-  what  is  the  basis  of  general  average, 

owner ;  but  unless  the  shipowner  is  may    sometimes    have    a    practical 

also  considered  to  contract  on  behalf  bearing  on  a  matter  in  issue.     In- 

of  all  the  other  shippers,  or  unless  deed,  the  dissenting  judgment  of  the 

an  agreement  of  the  shippers  inter  se  latter    is    entirely  founded    on   the 

can  be  inferred  from  their  knowledge  view  that  general  average  does  not 

that  all  the  bills  of  ladmg  will  con-  rest  on  contract. 


SECT,  til]  true  origin  OF  THIS  RIGHT.  *^1 

by  the  captain  as  agent,  not  for  the  shipowner  alone,  but  also  of  the 
cargo-owner,  by  which  act  he  jettisons  part  of  the  cargo  on  the 
implied  basis  that  contribution  will  be  made  by  the  ship  and  by  the 
other  owners  of  cargo  "  (d). 

[In  Milbiirn  v.  Jamaica  Fruit  Importing  Co.  (e),  A.  L. 

Smith  and  Vaughan  Williams,  L.  JJ.,  expressed  views  on 

this  point  which  agree  witli  that  of  Lord  Esher.     The 

former  says : — 

"  The  foundation  of  a  general  average  claim  is  ordinarily  not 
that  of  contract,  but  it  is  founded  upon  a  loss  which  arises  in  conse- 
quence of  extraordinary  sacrifices  made  or  expenses  incurred  for  the 
preservation  of  the  ship  and  cargo  in  the  time  of  peril,  and  which 
must  be  borne  proportionately  by  all  who  are  interested." 

Similarly,  Vaughan  Williams,  L.  J.,  says: — 

"  The  liability  to  contribute  in  no  sense  results  from  the  con- 
tract of  carriage,  but  exists  wholly  independently  of  the  contract  of 
carriage,  by  virtue  of  the  equitable  doctrine  of  the  Ehodian  law, 
which  as  part  of  the  law  maritime  has  been  incorporated  in  the 
municipal  law  of  England  "  (/).] 

§  4,  We  must,  in  the  next  place,  consider  more  at  l^^^^^'"'^^^^ 
larcre  the  force  of  the  pregnant  words  of  Lord  Black-  f^^itof 

o  1.       o  claimant. 

burn,  above  cited,  "  that  is,  i/' properli/  made^^  (//).  The 
law  of  general  average,  it  is  to  be  borne  in  mind,  is  no 
part  of  the  law  of  marine  insurance.  This  contribution 
was  in  full  force  for  centuries  before  insurance  was  in- 
vented. It  is  a  portion  of  tlie  law  of  Carriage  by  Sea, 
which  falls  witliin  the  contract  of  affreightment,  and  is 
re'i-ulated  bv  its  conditions  :  and  it  seems  to  be  now  settled 

{d)  Bartou  V.  Knglish,  12  Q.  B.  1).  Ruanvkc{mQ-i),  59  Fed.  E.  161 ;  ^Lar- 

218,  at  p.  223.  «''''<^/'-'  v.  Jlogers  (1895).  163  Mass.  50 ; 

(e)  [1900]  2  Q.  B.  540,  at  pp.  546,  The  Eliza    Lines  (1896),  61  Fed.  E. 

550.  -'^OS,  325. 

(/)  The  same  view  lias  been  ex-  [<j)  Andtrsoii     v.    (ktun    H.S.    Co., 

pressed  in   several    recent  decisions  10  App.  Cas.  at  p.  114  ;  ante,  ^2. 
of   the   American   Courts :     see    Tlte 


32 


DEFINITION  AND  GENERAL  PRINCIPLES.       [CHAP.   I, 


bv  tlie  law  of  England  that  whereas  the  law  of  n)arin& 
insurance  has  grown  up  in  subordination  to  the  maxim 
causa  jproxima  non  remota  sjjectatur,  that  is  to  say,  by 
looking  no  furtlier  back  than  to  the  immediate  cause 
of  loss,  so  that  the  underwriter  is  liable  if  the  ship  i& 
lost,  for  example,  by  a  collision,  stranding,  or  sinking, 
no  matter  though  that  mishap  were  brought  about 
through  the  fault  or  neglect  of  a  seaman,  or  through  any 
other  cause  except  the  wilful  misconduct  of  the  assured 
himself  (/^);  yet  in  the  law  of  affreightment,  that  is  to  say, 
in  determining  the  mutual  relations  of  a  shipowner  and 
the  owners  of  goods  on  board  his  ship,  it  is  otherwise. 

[The  shipowner  usually  engages  by  his  contract  to 
deliver  the  goods  entrusted  to  his  care,  subject  to  certain 
excepted  causes  of  loss  or  damage.  "  But  the  ship- 
owner's obligations  are  not  limited  and  exhausted  by 
what  appears  on  the  face  of  the  instrument.  Underlying 
the  contract,  implied  and  involved  in  it,  there  is  a 
warranty  by  the  shipowner  that  his  vessel  is  seaworthy, 
and  there  is  also  an  engagement  on  his  part  to  use  due 
care  and  skill  in  navigating  the  vessel  and  carrying  the 
goods.  Having  regard  to  the  duties  thus  cast  upon  the 
sliipowner,  it  seems  to  follow  as  a  necessary  consequence, 
that  even  in  cases  within  the  very  terms  of  the  exception 
in  the  bill  of  lading"  (or  charter-party)  "the  shipowner 
is  not  protected  if  any  default  or  negligence  on  his  part 
has  caused  or  contributed  to  the  loss  "(e).     Similarly,  th& 


(/i)  See  Marine  Ins.  Act,  1906, 
s.  55  (2)  (a). 

(i)  Per  Lord  Macnaghten  in  Wilson 
V.  Oargo  per  Xantho  (1887),  12  App. 
Cas.  503,  513.  This  statement  of 
the  law  is  admirable  in  its  simplicity 
and  clearness.  Substantiallj'  to  the 
same  effect  is  a  passage  in  the  judg- 
ment of  Willes,  J.,  in  Grill  v.  Iron 


Screw  Collier  Co.  (1866),  L.  E.  1 
C.  P.  600,  611,  which  has  frequently 
been  quoted  in  subsequent  cases. 
The  passage  is  as  follows :  "I  may 
say  that  a  policy  of  insurance  is  an 
absolute  contract  to  indemnify  for 
loss  by  perils  of  the  sea,  and  it  is 
only  necessary  to  see  whether  the 
loss  comes  within  the  terms  of  the^ 


SECT. 


IV.] 


EFFECT  OF  CLAIMANT'S  FAUET. 


33 


effect  of  a  breach  of  the  warranty  of  seaworthiness  is 
that  the  shipowner  is  liable  for  any  loss  or  damage  that 
happens  to  the  cargo  in  consequence  of  the  unseaworthi- 
ness, even  though  the  immediate  cause  be  a  peril 
excepted  by  the  contract  of  carriage  (J). 

Shipowners  have  successfully  endeavoured  to  protect 
themselves  against  these  liabilities  by  clauses  in  their 
contracts    of    affreightment    which    exempt    them    from 


contract,  and  is  caused  by  perils  of 
the  sea :  the  fact  that  the  loss  is 
partly  caused  hj  things  not  distinctly 
perils  of  the  sea,  does  not  prevent 
its  coming  mthin  the  contract.  In 
the  case  of  a  bill  of  lading  it  is  dif- 
ferent, because  the  contract  is  to 
carry  with  reasonable  care,  unless 
prevented  bj'  the  excepted  perils.  If 
the  goods  are  not  carried  with  reason- 
able cai'e,  and  are  consequently  lost 
by  perils  of  the  sea,  it  becomes  neces- 
sary to  reconcile  the  two  parts  of  the 
instrument,  and  this  is  done  by  hold- 
ing that  if  the  loss  through  perils  of 
the  sea  is  caused  by  the  previous 
default  of  the  shipowner  he  is  liable 
for  this  breach  of  his  covenant." 

Similarly,  in  Wilson  v.  Owners  of 
Cargo  per  Xantho  (1887),  12  App.  Cas. 
at  p.  510,  Lord  Herschell  said  :  "  I 
quite  agree  that  in  the  case  of  a 
marine  poHcy  the  causa  proxima 
alone  is  considered.  If  that  which 
immediately  caused  the  loss  was  a 
peril  of  the  sea,  it  matters  not  how  it 
was  induced,  even  if  it  were  by  the 
negligence  of  those  navigating  the 
vessel.  It  is  equally  clear  that  in 
the  case  of  a  bill  of  lading  you  may 
sometimes  look  behind  the  imme- 
diate cause,  and  the  shipowner  is 
not  protected  by  the  exception  of 
perils  of  the  sea  in  every  case  in 
which  he  would  be  entitled  to  re- 
cover on  his  policy,  on  the  ground 
that  there  has  been  a  loss  by  such 

L. 


perils.  But  I  do  not  think  this 
difference  arises  from  the  words 
'  perils  of  the  sea '  having  a  different 
meaning  in  the  two  instruments,  but 
from  the  context  or  general  scope 
and  purpose  of  the  contract  of  car- 
riage, excluding,  in  certain  cases-, 
the  operation  of  the  exception.  It 
would,  in  my  opinion,  be  very  objec- 
tionable, unless  well-settled  authority 
comiaelled  it,  to  give  a  different 
meaning  to  the  same  words  occurring 
in  two  maritime  instruments.  The 
true  view  appears  to  me  to  be  pre- 
sented by  Mr.  Justice  Willes  in  his 
judgment,  &c."  His  lordship  then 
cited  the  words  above  quoted.  See 
also  the  j  udgment  of  Lord  Blackburn 
in  Steel  v.  State  Line  S.S.  Co.  (1877), 
3  App.  Cas.  72,  at  p.  87. 

(,/)  Kopitoff  V.  Wilson  (1876),  1 
Q.  B.  D.  377 ;  Colin  v.  Davidson 
(1877),  2  Q.  B.  D.  455  ;  Steelw.  State 
Line,  supra;  The  Glen/ruin  (1885), 
10  P.  D.  103.  The  shipowner  also 
impliedly  warrants  that  the  ship  is 
reasonably  fit  to  receive  and  carrj' 
the  cargo :  see  Tattersall  v.  National 
S.S.  Co.  (1884),  12  Q.  B.  D.  297; 
McFadden  v.  Blae  Star  Line,  [1905] 
1  K.  B.  G97.  This  fitness  is  some- 
times regarded  as  being  included  in 
the  warranty  of  seaworthiness.  See 
Owners  of  Cargo  ex  Maori  King  v. 
Hughes,  [1895]  2  Q.  B.  550,  557  ; 
Sleigh  V.  Tyser,  [1900]  2  Q.  B.  333. 


1) 


34  DEFINITION  AND  GENERAL  PRINCIPLES.  [CHAP  I. 

responsibility  for  the  negligence  of  their  servants,  or 
for  losses  brought  about  by  the  unseaworthiness  of  the 
vessel (/r) ;  but  here  we  can  do  no  more  than  deal  briefly 
with  that  aspect  of  this  question  which  directly  concerns 
the  law  of  general  average.] 

Before  either  the  shipowner  or  the  owner  of  cargo 
can  claim  contribution  as  general  average  for  a  sacrifice 
of  his  property,  or  an  expense  incurred  by  him,  in  order 
to  avert  a  total  loss  of  ship  and  cargo,  he  must  be  in  a 
position  to  prove  in  case  of  need  that  the  total  loss  in 
question  was  not  one  for  which  he  himself  would  have 
had  to  pay.  For,  if  the  loss  of  ship  and  cargo  were  one 
which  must  ultimately  have  fallen  upon  himself,  it 
cannot  be  said  that  any  sacrifice  made  by  him  to  avert 
that  loss  was  really  made  for  the  benefit  of  any  one 
except  himself. 

For  example,  the  shipowner,  in  every  contract  of 
affreightment,  impliedly  engages  with  the  shipper  of 
goods  by  reason  of  the  warranty  of  seaworthiness  that 
his  ship,  on  the  commencement  of  her  voyage,  is  sea- 
worthy for  that  voyage  and  supplied  with  a  competent 
crew  (/).  If,  then,  she  is  in  fact  not  so,  and  in  conse- 
quence the  cargo  suffers  damage  or  is  lost,  this  loss  must 
fall  on  the  shipowner ;  and  this  no  matter  whether  the 
loss  or  damage  is  directly  attributable  to  the  unsea- 
worthiness, as  by  sea-water  entering  through  a  hole  or 
leak  in  the  bottom  which  ought  not  to  be  there,  or  more 
directly  to  an  accident  or  sea  peril,  as  by  her  sinking  in 


(/c)  Tlie  warranty  of  seaworthiness  2  K.  B.  378  (C.  A.);  Elderslie  S.S. 

will,  however,  only  be  excluded  by  Co.  v.  Borthwick,  [1905]  A.  C.  93 ; 

stipulations  so  clear  as  to  admit  of  Nelson  Line  v.  James  Nelson  &  Sons, 

no  other  construction  :  see  Gilroy  v.  Ltd.,  [1908]  A.  C.  16;  South  American 

J'rice,   [1893]   A.    C.    56;  Mclver  v.  Export   Sjjndicate   v.    Federal  Steam 

T<itt  Steamers,  [1903]    1  K.  B.  362  Nav.  Co.  (1909),  14  Com.  Cas.  228. 
(C.  A.) ;  Rathhone  v.  Mclver,  [1903]  (Z)  See  the  cases  in  note  [j),  supra. 


SECT.  IV.]      EFFECT  OF  CLAIMANT'S  FAULT. 

a  gale  or  fi'om  a  blow  of  the  sea,  which  her  plates  or 
fastenings   ought   to  have   been,   but  were  not,   strong 
enough  to  have  resisted.     If,  then,  the  owner  of  a  ship 
thus  unseaworthy,  or  his  servant  the  master,  makes  some 
sacrifice  or  goes  to  some  extraordinary  expense,  in  order 
to  prevent  such  a  loss  of  cargo  as  well  as  ship,  he  can 
claim  no  contribution  from  the  cargo  as  general  average, 
for  in  saving  the  cargo  no  less  than  in  saving  the  ship  he 
ultimately  benefits  the  shipowner  alone.     Thus,  for  the 
€0st  of  bringing  a  leaky  ship  into  a  port  of  refuge,  the 
shipowner  has  no  claim  upon  the  merchant  for  general 
average,  if  the  leak  were  occasioned  by  the  ship's  unsea- 
worthiness ;  nor  has  he  such  a  claim  even  upon  his  own 
underwriter  on  a  time  policy,  although  there  is  in  that 
policy  no  warranty  of  seaworthiness  (m). 

Again,  although  in  the  contract  of  affreightment  the 
shipowner  usually  protects  himself  against  absolute  lia- 
bility towards  the  owner  or  shipper  of  cargo  by  such 
clauses  as  "perils  of  the  seas,"  or  "  accidents  of  naviga- 
tion excepted,"  and  sometimes,  especially  in  the  case  of 
steamers,  with  very  elaborate  variations  on  that  theme, 
it  is  always  to  be  remembered  that  (as  we  have  seen)  he 
impliedly  undertakes  to  use  all  reasonable  diligence  on 
the  part  of  his  servants  towards  performing  his  under- 
taking to  deliver  the  goods  at  their  destination  in  the 
like  good  order  as  when  shipped ;  so  that  the  exceptions 
he  makes  are  always  interpreted  as  operative  only  in 
case  these  perils  and  accidents  render  that  performance 
impossible  in  spite  of  all  such  reasonable  diligence  (u). 

(m)  Fawcus  v.  Sarsfield  (1856),   G  [1911]  A.  C.  194.     And  see  Cargo  ex 

E.    &   B.    199.     See   also    Worms  v.  Laertes  (1887),  12  P.  D.  187. 
Storey  {l8do),lllExch..  4:21 ;  25  L.  J.  (?/)  That    is,    as    pointed    out    by 

Ex.  1;    Schloss  v.  IJerivt  (1863),   14  Jjoi-dBlackhurn  in  Steel  v.  State  Line 

C.  B.  (N.  S.)59;   The  Norway  {1865),  (1877),  3  App.  Cas.  at  p.  88,  unless 

Br.  &  Lush.  377  ;  Lindsay  v.  KJeiji,  there  is  in  the  contract  some  special 

d2 


36 


DEFJNITION  AND  GENERAL  PRINCIPLES.        fCHAP.  I. 


If,  without  a  gale,  or  fog,  or  any  accident,  the  master, 
by  a  blunder  in  his  reckoning,  or  a  seaman,  by  steering 
badly  or  neglect  of  soundings,  runs  the  ship  ashore,  the 
owner  must  get  her  off  at  his  own  expense,  and  pay  for 
any  damage  done  to  the  cargo :  he  cannot  ask  the  cargo 
to  contribute  (o).  In  the  case  of  a  collision  with  another 
ship,  the  position  is  the  same,  providing  the  collision  is 
the  result  of  some  fault  on  board  his  own  ship(jo). 

The  broad  principle  may  be  laid  down,  then,  that 
no  one  can  make  a  claim  for  general  average  contribu- 
tion, if  the  danger,  to  avert  which  the  sacrifice  was  made, 
has  arisen  from  the  fault  of  the  claimant  or  of  some  one 
for  whose  acts  the  claimant  has  made  himself,  or  is  made 
by  law,  responsible  towards  the  co-contributors  {q). 


clause  to  the  conti'ary,  sucli  as 
' '  whether  caused  by  the  negligence 
of  the  crew,  or  not."  For  the  effect 
of  such  a  clause  with  regard  to 
general  average,  see  infra,  p.  37. 

(o)  The    Ettricic   (1881),    G    P.    D. 
127,  at  pp.  133,  135.     "  If  the  plain- 
tiff,"   said  Brett,    L.  J.,   "had    not 
been  in  any  fault,  I  am  inclined,  at 
present,  to  think  that  he  would  have 
been  entitled  to  claim  from  the  de- 
fendant if  it  was  a  general  average 
contribution.      But  he  has  been  in 
fault,   and   the  authorities  are  con- 
clusive that  if  the  general  average 
contribution  which  he   claims   is   a 
general  average  contribution  which 
arose  by  reason  of  a  default  of  his, 
he     cannot     claim     anything  "     (at 
p.    135).      And    Cotton,    L.    J.,    at 
p.  137,  in  the  same  case,  said : — "  It 
would  be  against  equity  to  say  that 
the   person  who    himself    has   done 
the  wrongful  act  which  caused  the 
expenditure    shall    claim   thereujion 
from  anybody  else."  Q&q  also  Rohiu son. 
V.  Price  (1876),  2  Q.  B.  D.  91  ;    per 
Willes,   J.,   in  Johnson  v.   Chapman 


(1865),    19    C.    B.    (N.    S.)   563,    at 
p.  581. 

{p)  As  a  collision  is  a  peril  of  the 
sea,   the   shipowner  is   protected  by 
the  exception  of  "  perils  of  the  seas  " 
from  liability  to  the  owners  of  his 
cargo,  when  his  own  ship  is  not  in 
fault.     [Wilson  v.   Owners   of   Cargo 
per  Xardho  (1887),  12  App.  Cas.  503, 
overruling  Woodleij  v.  Michell  (1883), 
11    Q.  B.  D.   47.)      So,   also,   he  is 
protected  by  the  exception  of  "  acci- 
dents of  navigation."     [Sailing  Ship 
Garston     Co.    v.    Hicl-ie    (1886),    18 
Q.  B.  D.  17.)     In  the  case,  however, 
of  a  collision  caused  by  the  fault  of 
another  vessel  belonging  to  the  owner 
of  the  carrying  ship,  he  would  not  be 
jarotected  by  either  exception  from  a 
claim  in   tort   by  the  cargo-owners 
against  him  as  owner  of  the  wrong- 
doing vessel.     [Chartered  Mercantile 
Bank  of  India  v.  Netherlands  India 
Steam  Nav.  Co.  (1883),  10  Q.  B.  D. 
521  (C.  A.).) 

[q)  See  Strang  v.  Scott  (1889),  14 
App.  Cas.  601,  where  Lord  Watson, 
delivering  the  judgment  of  the  Privy 


SECT.  IV.J 


EFFECT  OF  CLAIMANT'S  FAULT. 


37 


[This  principle,  however,  has  no  application  when 
the  contract  of  carriage  would  have  exempted  the 
claimant  from  responsibility  for  the  loss,  to  avert  which 
the  sacrifice  was  made ;  it  is  no  defence  to  the  ship- 
owner's claim  that  the  necessity  of  the  sacrifice  arose 
from  the  negligence  of  the  master  or  crew,  when  the  bill 
of  lading  or  charterparty  contains  a  clause  excepting 
tlieir  negligence (r).    In  The  Carron  ParJc[s),  LordHannen 


Council,    said  : — "  Wlien    a    person 
who     would    otherwise     have    been 
entitled   to   claim   contribution  has, 
by   his    own    fault,    occasioned    the 
peril  which  mediately  gave   rise  to 
the   claim,   it   would  be   manifestly 
unjust    to    i^ermit   him    to   recover 
from  those  whose  goods  are  saved, 
although  they  may  be    said,    in   a 
certain  sense,  to  have  benefited  by 
the   sacrifice    of  his   propertj^.      In 
any   question    with    them    ho    is   a 
wrong-doer,  and,  as  such,  under  an 
obligation  to  use  every  means  within 
his  power  to  ward  ofl:  or  repair-  the 
natural  consequences  of  his  wrongful 
act.     He    cannot    be    permitted    to 
claim  either  recompense  for  services 
rendered,    or    indemnity    for    losses 
sustained  by  him,  in  the  endeavour 
to  rescue   property  which   was  im- 
perilled by  his  own  tortious  act,  and 
which    it    was    his    duty   to   save." 
This  is  not  the  same  thing  as  to  say 
that    there    can    be    no    claim    for 
general  average   if  the  danger   has 
arisen  from  the  fault  of  the  ship- 
owner or  his  servants.     A  party  who 
has  not  himself  been  in  fault,  e.g., 
an  owner  of  cargo,  may  have  such 
a   claim.      {Strang   v.  Scott,   supra.) 
This  is  illustrated  by  a  decision  of 
the  Admiralty  Division  in  the  case 
of  The  Argo.     This  ship  having  been 
run  aground  through  faulty  naviga- 
tion,   the   shipowner    was   held   not 
■entitled  to  claim  as  general  average 


the  expense  incurred  by  him  in 
getting  the  ship  and  cargo  off  the 
strand,  but  the  owner  of  the  cargo 
was  entitled  to  recover  contribution 
from  the  shipowner  as  general  aver- 
age towards  the  loss  of  cargo  jet- 
tisoned for  that  purpose.  {Argo, 
Maritime  Register,  24  March,  1882.) 
The  cargo-owner  in  this  case  might 
presumably  have  gone  further,  and 
claimed  from  the  shipowner  the  en- 
tire loss.  But  as  an  owner  of  cargo 
jettisoned  may,  if  he  joleases,  claim 
from  each  contributor  dii-ect  {Dobson 
V.  Wilson{l8l3),  3  Camp.  480),  and  as 
the  fault  of  the  shij^owner  would 
not  be  an  answer,  as  between  one 
owner  of  cargo  and  another,  to  such 
a  claim  {Strang  v.  Scott,  supra),  it 
would  seem  that  there  would,  in  a 
case  like  that  of  The  A  rgo,  be  a  double 
remedy.  The  merchant  may  either 
claim  all  at  once  from  the  shipowner, 
or  he  may  demand  rateable  contri- 
bution from  each  who  has  gained 
from  his  gift  or  sacrifice,  leaving  his 
fellow-merchants  to  their  ultimate 
remedy  against  the  shipowner  who 
was  in  fault. 

(r)  Strang  v.  Scott,  supra;  Tlic 
(Uirron  Park  (1890),  15  P.  D.  203; 
Milhurn,  v.  Jamaica  Fruit  Importing 
Co.,  [1900]  2  Q.  B.  540  (C.  A.^ 
Vaughan  Williams,  L.  J.,  dissent- 
ing).    These  decisions  were  recently 


(•s)  Supra. 


38  DEFINITION  AND  GENERAL  PRINCIPLES.        TcHAP.  I 


L. 


Act 


.said: — "Negligence  for  which  he"  (the  shipowner)  "is 
not  responsible  is  as  foreign  to  him  as  to  the  person  who 
has  suffered  by  it  ...  .  Here  it  appears  to  me  that  the 
relation  of  the  goods  owner  to  the  shipowner  has  been 
altered  by  the  contract  that  the  shipowner  shall  not  be 
responsible  for  the  negligence  of  his  servants  in  the 
events  which  have  happened." 
TheHaiter  Contracts   for   the  carriage  of    goods    on    Atlantic 

voyages  freqiientl}^  contain  a  clause  incorporating  the 
provisions  of  the  "  Harter  "  Act,  a  statute  of  the  United 
States,  passed  in  1893,  to  regulate  the  trade  between  the 
United  States  and  foreign  ports.  Sections  1  and  2  of  the 
Act  prohibit  and  avoid  clauses  which  relieve  the  ship- 
owner from  the  duty  to  take  care  of  the  cargo  and  provide 
a  seaworthy  ship  ;  but  section  3  enacts  that  if  the  ship- 
owner has  exercised  due  care  to  make  the  vessel  seaworthy, 
neither  he,  the  vessel,  her  agent,  nor  her  charterer  shall 
be  liable  {inter  alia)  for  damage  or  loss  arising  from 
faults  or  errors  in  navigation,  or  in  the  management  of 
the  vessel  [t).  The  Supreme  Court  of  the  United  States 
has  held  that  this  exemption  in  the  Act  has  not  the  effect 
of  entitling  the  shipowner  to  claim  a  contribution  for  a 
general  average  loss  caused  by  the  negligence  of  his 
servants  (ii).  It  may  be  argued  that  the  incorporation  of 
the  Harter  Act  in  an  English  contract  [v)  has  no  greater 

followed  by  the  Court  of  Session  in  tributioii  from  the  shipowner,  the 
Klein  v.  Lindsay,  [1910J  Sess.  Cas.  damage  to  the  ship  would  also  have 
230.  to  be  taken  into  account ;  otherwise 
[t)  These  provisions  do  not  apply  the  cargo-owner  could,  by  selecting 
to  the  transportation  of  live  animals.  his  form  of  procedure,  recover  for 
For  the  text  of  the  Act,  see  Carver,  losses  for  which  the  shipowner  was 
s.  103a;  Dohell  t.  S.S.  Bossmore  Co.,  not  responsible.  {See  The  Strathdon 
[1895]  2  Q.  B.  408.  (1900),  101  Fed.  E.  600;  The  Jason 
''  (u)^  The  Irrdwaddij  (1897),  171  (1908),  162  Fed.  E.  56.) 
TJ.  S.  187.  If,  however,  the  cargo-  {v)  See  iwst,  p.  277,  as  to  when 
owner  in  a  case  within  the  exemption  the  contract  will  be  deemed  to  be- 
ware to  claim  a  general  average  con-  English. 


SECT.  IV.]      EFFECT  OF  CLAIMANT'S  FAULT.  39 

effect  than  is  attributed  to  it  by  American  law,  so  that, 
notwitlLstaiiding  the  decisions  in  The  Carron  Park  and 
Milhurn  v.  Jamaica  Fruit  Importing  Co.  (.v),  the  sliipowner 
is  not  entitled  to  contribution  for  a  loss  due  to  the 
negligence  of  his  servants  in  the  navigation  or  manage- 
ment of  the  vessel.  It  has.  however,  been  held  that  the 
legal  result,  if  the  contract  is  expressed  to  be  subject  to 
the  provisions  of  the  Act,  is  only  the  same  as  if  the 
material  clauses  of  the  Act  were  written  into  the  con- 
tract (//).  It  is  therefore  submitted,  that  under  an  English 
contract  incorporating  the  Act,  the  shipowner  would  not 
be  precluded  by  the  decision  of  the  Supreme  Court  from 
claiming  contribution  ;  the  incorporation  of  the  Act  is 
only  equivalent  to  the  insertion  of  a  negligence  clause  in 
the  terms  of  the  Act.] 

S  5.   The  question  of  cause  leads  naturally  to  that  of  Rules  as  to 

^^  J^  -^  consequences. 

consequences.  To  what  extent,  according  to  English  law, 
is  the  act  of  sacritice,  which  gives  rise  to  contribution,  to 
be  followed  out  to  its  more  or  less  remote  consequences  ? 

This  is  not  fully  expressed  in  the  definition.  The 
Rhodian  maxim  says  nothing  whatever  about  it.  Law- 
rence's axiom,  "  all  loss  which  arises  in  consequence,"  if 
taken  quite  literally,  which,  however,  it  probably  was 
never  meant  to  be,  might  go  too  far.  It  can  hardly  be 
intended,  apparently,  that  every  loss  which  would  not 
or  could  not  have  taken  place,  had  the  sacrifice  not  been 
made,  must  be  replaced  by  contribution.  The  cutting 
away  of  a  mast,  for  example,  while  saving  the  ship  and 

{x)  Sapru,  ]).  37.  wliicli  wo  must  construe  simply  as 

(y)  Dobdlv.S.S.  Jiossmore  Co.{lH9o),  words  occurriug in  this  bill  of  lading." 

2Q.  B.40S(C.A.).     "They  then  iu-  (Per    LordEsher,    ibiJ.      See    also 

troduce  into  their  bill  of  lading  the  Rowson   v.    Atlantic    Trans2wrt    Co., 

words  of  the  Harter  Act,  which  I  [1903]  2  K.  B.  G66  (C.  A.).) 

decline  to  construe  as  an  Act,  but 


40  DEFINITION  AND  GENERAL  PRINCIPLES.        [CHAP.  I. 

cargo  from  some  imminent  danger,  may,  by  retarding 
the  ship's  sailing,  bring  them  within  the  action  of  some 
new  danger,  from  which  they  would  otherwise  have  been 
free  through  having  reached  their  destination.  Suppose 
that  from  this  cause  she  were  to  fall  into  an  enemy's 
hands,  it  could  hardly  be  contended  that  the  loss  by 
capture  should  be  replaced  by  contribution  as  a  conse- 
quence of  cutting  away  the  mast.  This  illustration  may 
suggest,  indeed,  a  possible  solution  of  our  difficulty 
founded  on  the  English  law  with  regard  to  damages. 

In  the  case  of  Tlw  Notting  Hill,  in  1884,  Brett,  M.  R., 
speaking  generally  as  to  the  principles  of  English  law 
with  regard  to  remoteness  of  damage,  says  : — 

"  The  rule  with  regard  to  remoteness  of  damage  is 
precisely  the  same  whether  the  damages  are  claimed  in 
actions  of  contract  or  of  tort,  and  it  has  been  laid  down 
many  times,  both  in  Eadlejj  v.  Baxendale  {2)  and  other 
cases.  In  Mayne  on  Damages  (3rd  edit.),  at  p.  39,  it  is 
thus  stated :  '  The  first,  and  in  fact  the  only,  inquiry  in 
such  cases  is,  whether  the  damage  complained  of  is  the 
natural  and  reasonable  result  of  the  defendant's  act  ?  It 
will  assume  the  character  if  it  can  be  shown  to  be  such  a 
consequence  as  in  the  ordinary  course  of  things  would 
flow  from  the  act,  or,  in  cases  of  contract,  if  it  appears 
to  have  been  contemplated  by  both  parties  '  "  («). 

Applying  this  rule  more  closely  to  general  average, 
it  may  be  thought  that,  since  we  have  to  determine  quod 
pro  omnibus  datum  est,  and  since  giving  must  always 
imply  an  intention  to  give,  what  we  have  here  to  ascer- 
tain must  be,  what  loss  at  once  has  in  fact  occurred,  and 
likewise  must  be  regarded  as  the  natural  and  reasonable 

(2)  (185-1),  9  Exch.  ;}41  ;  23  L.  J.       105,  at  p.  113.     In  the  8tli  (latest) 
(Ex  ")  179.  edition  of  Mayne  on  Damages,  this 

{«)  The  Nottiufj  Hill  (1884),  9  P.  D.      passage  is  fonnd  at  p.  54. 


SECT,  v.]  CONSEQUENCES  :  RULES  AS  TO. 


41 


result  of  the  act  of  sacrifice  ?  or,  in  other  words,  what  the 
shipaiaster  would  naturally,  or  might  reasonably,  have 
intended  to  give  for  all  when  he  resolved  upon  the  act  ? 
If,  then,  upon  the  act  of  sacrifice  any  loss  ensues,  which 
the  master  did  not  in  fact  bring  before  his  mind  at  the 
time  of  making  the  sacrifice,  it  would  have  to  be  con- 
sidered whether  it  were  such  a  loss  as  he  naturally  might 
or  reasonably  ought  to  have  taken  account  oi{b). 

It  must  further  be  borne  in  mind,  in  applying  this 
principle,  more  particularly  to  sacrifices  consisting  of 
disbursements,  that  for  several  purposes  it  is  occasionally 
necessary  to  group  together  a  series  of  consecutive  events 
or  situations,  as  for  practical  purposes  constituting  one 
entire  operation,  and  to  treat  this  aggregate  as  the  cause 
of  whatever  loss  is  in  this  sense  the  consequence  of  any 
part  of  it.  The  rescuing  of  a  ship  and  cargo  from  a 
position  of  danger  {c.(/.,  when  sunk,  or  aground,  or 
requiring  to  be  carried  into  a  port  of  refuge),  may  not 
be  practicable  by  any  single  measure,  to  be  resolved  on 
and  completed  in  the  same  hour  or  even  day ;  it  may 
require  a  series  of  exceptional  measures,  each  only  to 
begin  when  the  previous  one  is  completed,  each  perhaps 
involving  an  extraordinary  expenditure,  yet  each  of  no 
value  as  means  towards  the  common  end,  unless  followed 
up  by  the  others.  Such  a  series  must  evidently  be  treated 
as  a  whole,    and    cannot   be    properly   treated  without 


(Z>)  This  passage  was  quoted  with.      framers  of  the  German  Code  ;    and 


approval  by  Bigham,  J.,  in  Avijlo- 
Argentine  Live  Stock,  <&c.  Atjency  v. 
Temjjerle)/,  [1899]  2  Q.  B.  403,  at 
p.  409.  See  also  McCall  v.  Houlder 
Bros.  (1897),  60  L.  J.  Q.  B.  408. 
The  question,  as  from  its  meta- 
physical character  might  have  been 
anticipated,  appears  to  have  been 
much    considered    by    the     learned 


the  result  is  summed  up  by  Ulrich, 
in  his  valuable  book  on  general 
average,  to  the  effect  that  those  con- 
sequences should  be  brought  in  which 
either  were  or  ought  to  have  been 
foreseen  in  making  the  sacrifice,  or 
which  stood  in  causal  connection  with 
it.  (Ulrich,  Grosse-Haverei,  p.  o ; 
cf.  Appendix  J.,  p.  547.) 


42 


DEFINITION  AND  GENERAL  PRINCIPLES.         fCHAP.   I. 


bringing  in  all  those  consequences  which  might  have 
been,  and  by  a  judicious  shipmaster  or  other  actor  of  the 
sacrifice  \YOuld  have  been,  taken  into  account  in  deter- 
mininof-  whether  or  not  to  embark  in  that  series  of 
operations  (c). 


Maxim  of 
adjustment. 


Is  eventual 
succe 
sary ' 


success  neces- 

.  9 


§  6.  On  that  principle  of  natural  justice  embodied 
in  the  maxim  so  long  used  on  the  equity  side  of  our 
courts,  "  He  who  claims  equity  must  render  equity,"  it 
has  from  time  immemorial,  and  in  all  countries,  been 
the  rule,  in  adjusting  general  average,  that  the  property 
which  has  been  sacrificed  shall  bear  its  share  as  a  con- 
tributor no  less  than  if  it  had  been  saved.  More  pre- 
cisely, the  contribution  is  to  be  so  regulated  as  to  make 
it  in  result  immaterial  to  each,  whose  property  shall  in 
the  first  instance  have  been  taken,  whose  money  spent, 
or  whose  credit  pledged,  for  the  safety  of  a[\(d). 

This  consideration,  which  belongs  properly  to  the 
second  part  of  this  volume,  that  which  treats  of  Adjust- 
ment, enables  us  for  the  present  to  postpone  the  discus- 
sion of  several  questions  which  have  heretofore  been  less 
properly  introduced  in  this  place,  the  proper  business  of 
which  is  to  deal  with  the  conditions  which  must  deter- 
mine whether  a  loss  should  or  should  not  form  the 
subject  of  general  average. 

(a)  Suppose,  for  instance,  that  a  sacrifice  is  not  per- 
fectly successful :  the  ship  and  cargo  may  be  saved  by  it 
for  the  moment,  but  may  be  lost  or  damaged  by  a  sub- 
sequent accident.  Shall  there  be  no  contribution  ?  or 
shall  the  cargo  sacrificed  be  better  oft',  by  escaping  the 
subsequent  damage,  than  the  remainder  of  the  property  ? 
Or,  in  case   the   sacrifice  has  consisted   of  an  absolute 


(c)  Post,  Cliap.  IV.  §  III. 


((/)  Arn.  Ins.  (2nd  edit.),  p.  937; 
(8tli  edit.),  §  974. 


SECT.  VI.J         SUNDRY  UNDETERMINED  QUESTIONS.  43 

outlay  of  iiioney,  shall  the  man  who  has  advanced  this 
mone}'  at  first  be  left  finally  in  a  worse  position  than  if 
the  sacrifice  had  been  made  in  kind,  as  well  as  worse  off 
than  his  co-adventurers,  by  being  left  with  the  loss  of 
his  money  and  likewise  of  his  property  ? 

To  all  such  questions  the  sliort  answer  here  is  :  these 
difficulties  must  all  be  subordinated  to  the  principle  above 
laid  down,  namely,  that  in  result  no  one  is  to  be  bettei- 
off,  nor  yet  worse  off,  than  if,  instead  of  his.  some  other 
party's  property  had  been  given  for  the  sake  of  all.  How 
this  is  to  be  done  is  a  question  of  adjustment,  and  will 
be  considered  in  its  place. 

One  or  two  other  preliminary  questions,  of  a  some- 
what similar  character  to  these,  require  a  fuller  conside- 
ration, for  which  this  seems  to  be  the  most  convenient 
place. 

(b)  Danger  (e),  there  can  be  no  doubt,  is  a  necessary  Daager. 
condition  of  general  average.  This  is  implied  in  the 
definition  itself,  whether  we  take  the  Rhodian  maxim  or 
that  of  Mr.  Justice  Lawrence  or  the  statement  in  the 
Marine  Insurance  Act(/).  The  old  writers  have  laid 
down  that  the  sacrifice  must  not  be  the  result  of  a  panic 
fear(^),  that  it  must  be  reasonable  (/z),  and  must  have 
been  made  to  avert  "an  imminent  danger"  («');  by  which 
word  "  imminent,"  however,  is  apparently  meant  no  more 
than  ''  real"  or  "  substantial,"  for  there  is  no  reason  to 
suppose  it  was  intended  to  discourage  the  judicious 
making  of  a  timely  sacrifice  to  avert  a  danger  approaching 

(f)    /.('.,    common    danger.      (See  (1884),  10  Ajip.  Cas.  107.    See  Marino 

Neshitt  V.  Lnshingtuu  (1792),  4  T.  R.  Insurance  Act,  1906,  s.  0(5  (2),  ante, 

783;  Benecke,  223;  Aruould,  §  910.)  p.  25. 
•(/)  Ante,  pp.  1,  21,  25.  (/)  Harrison   v.   Bunlc  of  Aadrnl- 

-  {g)  Emerigon,  Ass.,  c.  12,  sect.  39,  asia  (1872),  L.  E.  7  Ex.  39,  at  p.  48. 

§6.     As  to  sacrifice  properly  made  in  See  also  Robinson  v.  Pr/ce  (187G),  2 

fear  of  death,  see  supra,  p.  25.  Q.  B.  D.  91,  295. 
(/;)    Anderson   v.    Ocean    S.S.     Co. 


44  DEFINITION  AND  GENERAL  PRINCIPLES.         [CHAP.  I. 

in  the  future  [k).  I  believe  it  cannot  be  shown  by 
authorities,  nor  do  I  think  it  is  the  fact,  that  the  law  of 
England  has  gone  further,  in  defining  the  quantum  of 
danger,  than  this.  Is  it  desirable  or  practicable  to  do 
more  ?  [In  the  Marine  Insurance  Act,  s.  66,  it  is 
stated  that  there  is  a  general  average  act  when  the 
sacrifice  is  made  in  "  time  of  peril."  It  is  apprehended 
that  a  liberal  construction  must  be  given  to  these  words, 
and  that  the  time  of  peril  has  come  when  the  danger  is 
real,  and  so  near  that  it  would  be  imprudent  to  delay  the 
sacrifice.] 

The  great  utility  of  the  rule  of  general  average,  we 
must  bear  in  mind,  consists  in  its  simplifying  the  action 
of  a  shipmaster  in  those  critical  occasions  when  he  has 
to  resolve,  often  at  a  moment's  notice,  whether  or  not 
to  incur  a  certain  loss  in  order  to  avert  the  danger  of 
a  loss,  as  yet  uncertain,  but  more  serious  (/).  This  ad- 
A'-antao'e  would  be  to  a  certain  extent  counteracted  if  this 
rule  of  general  average  were  to  introduce  fresh  distinc- 
tions, artificial  and  perplexing,  yet  which  the  master 
would  be  obliged  at  this  moment  of  danger  to  bring- 
before  his  mind.  The  extent  and  imminence  of  the 
danger,  on  the  one  side,  and  the  value  and  probable 
results  of  the  sacrifice  on  the  other,  vary  in  each  case. 
Some  rough  equation  between  the  two,  sufficient  to 
determine  his  action,  he  must  make  as  well  as  he  can. 
Can  landsmen,  however  skilled  in  metaphysics,  lay  down 
for  him  any  more  precise  rules,  which  at  such  a  moment 
will  be  more  likely  to  enlighten  than  to  perplex  his 
decision  ? 

{k)  As  in  the  case  put  by  Kelly,  fail  before    the   next    spring    tides. 

C.  B.   (L.  E.   7  Ex.   at  p.  52),  of  a  (^^qqhIso  Laxurencey.  Minturn  {ISb^), 

jettison  to  prevent  being  neaped  in  17  How.  100.) 

a  place  of  shelter  where  no  supplies  (/)  Ante,  Intr.  p.  14. 
could  be  obtained,  if  provisions  would 


SECT.  VI.]  SUNDRY  UNDETERMINED  QUESTIONS.  ^^ 

Landsmen,  however,  of  eminence,  if  not  of  what  is  Alternative 
technically  called  authority,  have  essayed  this  dithcult 
task,  thinkino-  it   necessary  that  a  hard   and  fast  line 
should  be  laid  down  as  to  how  much  danger  is  requisite 
to  justify  an  act  of  sacrifice.     They  have  not,  indeed, 
been  of  one  mind  on  the  question.     Some  have  argued 
that  the  destruction  of  property  by  an  act  of  will  cannot 
be  called  a  sacrifice  unless  there  were  some  other  alter- 
native besides  that  of  destroying  this  particular  thing,  or 
being  totally  lost  if  you  do  not;  for,  they  argue  with 
some  force,  this  particular  thing  was  at  that  moment  of 
no  value,  since  it  must  have  been  lost  in  either  case. 
Such,  though  they  use  different  formulas,  seems  to  have 
been  the   opinion   of    Stevens    and    Benecke  (w).     This 
doctrine,  however,  has  been  discredited  by  actual  judg- 
ments in  our  courts.     For,  if  a  cargo  is  on  fire,  and  the 
fire  can  only  be  put  out  by  pouring  in  water,  it  is  now 
decided  that  the  damage  done  by  pouring  water  in  is  to 
be   replaced    as    general    average.     Latterly,   Mr.   Mac- 
lachlan,  the  learned  editor  of  several  editions  of  Arnould 
on  Insurance,  propounds  a  doctrine  which,  if  I  under- 

(??i)  Stevens    on    Average,    p.    7;  did  no  good  to  any  one.     The  obvious 

Benecke,    Ins.  p.   170.     This  meta-  answer  is,  at  the  time  of  the  sacrifice 

physical    difficulty,    indeed,    is   only  the  master  did   not  and  could  not 

part  of  a  still  more   comprehensive  know  which  way  the   event  would 

difficulty,  which,  if  admissible  at  all,  have  been  had  he  not  made  the  sacri- 

ought  in  consistency  to  be  so  formu-  fice,    and    this    uncertainty    in    his 

lated  as  to  be  fatal  to  all  contribution  mind  was  a  sufficient  justification  for 

to   general   average.      At    the   time  his  conduct,  provided  that  his  action 

when  the  sacrifice  was  resolved  on,  was   reasonable.      This    holds    good 

forces  were  in  existence  which  abso-  equally,  whether  at  that  time  there 

lutely   determined    the    fate   of  the  were  or  were  not  two  possible  ways 

vessel  one  way  or  the  other,  so  that,  of   escape   to   choose   between.     See 

had  the  sacrifice  not  been  made,  she  the    Marine   Insurance  Act,    s.    66, 

must  either  have  perished  or  not  have  which  only  requires  that  the  sacrifice 

-•  perished.    If  she  would  have  perished  or  expenditure  shall  be  voluntarily 

without    the   sacrifice,   the   sacrifice  and  reasonably  made  or  incurred  in 

caused  no  loss  to  any  one.     If   she  time  of  peril, 
■would  not  have  perished,  the  sacrifice 


46  DEFINITION  AND  GENERAL  PRINCIPLES.         [CHAP.  I. 

stand  it,  resembles  that  of  Stevens  and  Benecke  in 
being-  self-engendered  and  therefore  self-evident,  but 
otherwise  goes  beyond  and  apart  from  it,  in  affirming 
that  there  must  be  an  alternative  to  total  loss,  but  yet 
that  that  alternative  must  be  no  otlier  than  the  one 
selected  by  the  master  (n).  Baily,  again,  no  less  strenu- 
ously contends  that,  in  order  to  justify  a  sacrifice,  there 
must  be  a  moral  certainty  of  total  loss  if  the  sacrifice  be 
not  made  (o).  In  the  course  of  my  experience  I  have 
never  known  a  case  in  which  any  of  these  conflicting 
theories  have  proved  of  the  slightest  practical  guidance. 
Ofthedis-  (c)  Oil  iiiuch   hio'her  authority  than  any  of  these, 

tinctionof  ^    {  °  .  -^  .  -^      .  ' 

extraordinary  biit    still    oiily  Oil  tlic   authority  of   a   singlc   judge   or 

in  kind  and 

in  degree.  .  dccisioii,  I'csts  aiiotlier  distinction  j^erhaps  equally  arti- 
ficial, and  equally  liard  to  reconcile  with  the  broad 
simplicity  of  the  Rhodian  maxim  or  that  of  Law- 
rence, J.  Disbursements,  it  has  been  said,  must,  in 
order  to  give  rise  to  a  claim  for  general   average,  be 

(;i)  Arnould,  Ins.  Gth  edit.  p.  856.  fact  the  cheaiJer,  course,  and  the  ship 
I  am  not  certain  that  I  have  rightly  is  thereby  got  off,  the  cost  of  the 
understood  this  passage,  which  is  tug  is  not  i3roj3erly  the  subject  of 
perhaps  somewhat  obscure.  It  is  as  general  average  ?  And  yet,  if  not 
follows: — "There  must  be  an  alter-  this,  what  does  it  mean?  This, 
native  to  total  loss ;  otherwise  any  however,  is  distinctly  at  variance 
effort  to  avert  it,  however  instinctive,  with  the  words  of  Brett,  L.  J.,  in 
is  wilful  and  worthless,  and  conse-  Whitecross  Wire  Co.  v.  Savill  (1882), 
quently  cxuite  unrecognizable  by  8  Q.  B.  D.  653:  "It  has  been  said 
human  law.  Moreover,  if  there  be  that  the  defendant's  vessel  might 
another  alternative  besides  the  one  have  been  scuttled"  (instead  of  pour- 
selected  by  the  master,  total  loss  is  ing  in  water  to  extinguish  a  fire), 
not  so  proximate  "  [imminent '']"  as  "but  the  expense  of  raising  and 
to  call  into  operation  the  law  which  rejDairing  her  would  have  entitled  her 
l^laces  the  whole  expedition  in  his  owners  to  a  general  average  contri- 
discretion,  and  then  clothes  his  ex-  bution ;  and  because  an  aj^parently 
orcise  thereof  with  its  authority."  alternative  mode  of  proceeding  ex- 
Can  this  second  sentence  mean  that,  isted,  the  captain  cannot  be  said  to 
if  for  example  a  ship  is  on  shore,  and  have  acted  unreasonably." 
can  be  got  off  either  by  jettisoning  (o)  Baily,  Gen.  Av.  2nd  edit, 
cargo  or  by  hiring  a  tug,  and  the  ]}.  15. 
master  elects  the  latter,  which  is  in 


SECT.  VI.]  SUNDRY  UNDETERMINED  QUESTIONS. 

extraordinary,  not  merely  in  degree  but  in  kind.  For 
example,  the  extraordinary  consumption  of  a  steamer's 
coals,  or  the  enhancement  of  the  wages  of  her  crew, 
resulting  from  some  measure  out  of  the  common  course, 
such  as  bearing  up  for  a  port  of  distress,  for  the  common 
preservation,  ought  not,  it  has  been  said,  to  be  the  sub- 
ject of  general  average;  for,  said  the  learned  judge, 
"  though  the  measure  taken  caused  the  disbursement 
to  be  extraordinarily  heavy,  it  did  not  render  it  an 
extraordinary  disbursement.  ...  It  does  not  resemble 
the  case  of  a  master  hiring  extra  hands  to  pump  when 
his  crew  are  unable  to  keep  the  vessel  afloat,  or  any 
other  expenditure  which  not  only  is  extraordinary  in 
amount,  but  is  incurred  to  procure  some  service  extra- 
ordinary in  its  nature  "  (p). 

Notwithstanding  the  high  authority  on  which  this 
dictum  rests,  it  is  difficult  not  to  doubt  whether  the 
ground  of  it  is  tenable.  In  a  mercantile  sense,  there  is 
no  such  distinction  between  hiring  extra  hands  and 
keeping  the  hands  you  have  for  an  extra  length  of  time, 
so  as  to  enhance  the  wages  you  are  to  pay  them,  as 
would  justify  you  in  calling  the  former  and  not  the 
latter  a  sacrifice  or  a  something  given.  That  this  is  so,  is 
proved  by  the  fact  that  in  many,  perhaps  in  most, 
countries  this  enhancement  of  wages  is  made  the  subject 
of  general  average,  whenever  the  operation  which  has 
led  to  it  is  recognized  as  a  step  taken  out  of  the  common 
course,  and  taken  for  the  common  safety;  and  that  in 


{p)  Per  Blackburn,  J.,  in  Wilson  made  in  respect  of  the  cost  of  coal 

v.  Bank  of  Victoria  (1867),  L.  E.  2  bought  from  a  passing  vessel  to  work 

Q.    B.    203,    at  p.    212.      The   same  the  donkej'-cngine,  for  the  purpose 

principle  was  applied  by  the   Court  of  keeping  down  water  in  the  hold 

of  Exchequer  in  Harrison  v.  Bank  of  due  to  the  straining  of  the  ship  in  a 

Australia   (1872),    L.   E.   7   Ex.    39,  storm.      (Cf.    Tha   Bona,    [1895]    P. 

where   a    claim   was  unsuccessfully  125  (C.  A.).) 


47 


48  DEFINITION  AND  GENERAL  PRINCIPLES.        [CHAP.  I. 

this  country  shipowners,  it  may  be  said  without  an 
exception,  recognize  it  for  a  grievance  that  the  like 
measure  is  not  dealt  out  to  them.  The  question  must 
be  more  fully  discussed  elsewhere  :  all  that  is  properly 
in  place  here  is  to  point  out  that  it  would  be  contrary 
to  the  spirit  of  the  English  mercantile  law,  and,  there- 
fore, is  not  self-evidently  the  right  course,  to  interpret 
the  words  "  sacrifice  "  or  "  gift  for  all,"  in  this  definition, 
in  any  other  than  the  ordinary  mercantile  sense  which 
these  words  bear. 


Must  the  §  6a.  {~An  important   question  which   was  not   dis- 

sacrifice  be  '  pi-  i       •  t       -i 

the  act  of  the  cusscd  by  the  learned  author  oi  this  work,  is  whether  a 
sacrifice,  in  order  to  constitute  a  general  average  act, 
must  be  ordered  or  at  any  rate  authorized  by  the  master, 
or  whether  it  may  be  the  act  of  the  crew  or  of  a  stranger 
to  the  adventure.  The  master  is  no  doubt  the  proper 
person  to  decide  whether  a  sacrifice  must  be  made  ;  the 
conduct  of  the  adventure  and  the  care  of  the  ship  and 
cargo  have  been  entrusted  to  him  (q).  Yet  there  may  be 
exceptional  cases  in  which  a  sacrifice  has  reasonably  been 
made  without  any  order  from  him,  or  even  against  his 
wish  ;  and  the  question  may  arise  in  such  cases  whether 
the  owner  of  the  property  sacrificed  is  entitled  to  contri- 
bution. There  is  not  much  authority  in  this  country  on 
the  point.  In  Frice  v.  Noble  (r),  a  claim  for  contribution 
was  made  in  respect  of  the  jettison  of  the  ship's  guns  and 
part  of  her  stores  and  tackle,  after  she  had  been  captured 

{q)  There  can  be   no  doubt,  it  is  ship  -will  give  rise  to  contribution, 

apprehended,  that  in  an  emergencj-  Price  v.  Noble,  infra,  if  it  be  not  an 

arisin"-  at  a  time  when  the  master  is  authority  for  the  wider  proposition 

absent  or  incapacited  from  acting,  a  in  support  of  which  it  will  presently 

sacrifice  properly   made    under    the  be    cited,    is    an    authority  to    this 

direction  of  the  mate  or  other  officer  effect. 

who  is  entitled  to  take  charge  of  the  (r)  (1811),  4  Taunt.  123. 


SECT.  VIA.]  SACRIFICE  NOT  MADE  BY  MASTER. 

by  a  French  privateer  and  while  she  was  in  possession  of 
a  prize  master  and  crew.  The  mate  of  the  ship  and  two 
of  the  crew  had,  however,  been  left  on  board  ;  and  in  the 
emergency  of  the  storm  the  prize  crew  called  the  mate 
to  their  aid  in  navigating  the  ship,  and  it  was  with  his 
assistance  and  on  his  advice  that  the  jettison  was  made. 
Afterwards  the  ship  was  recaptured,  and  her  owner 
brought  an  action  for  a  contribution  in  general  average, 
and  obtained  a  verdict  which  the  defendants  moved  to 
set  aside  on  the  ground  that  the  jettison  was  not  ordered 
by  the  master,  but  by  strangers  to  whom  the  respective 
owners  of  the  ship  and  cargo  had  not  entrusted  their 
safety.  The  Court,  however,  held  that,  as  the  goods  had 
been  jettisoned  for  the  benefit  of  the  residue  of  the 
property,  the  shipowners  were  entitled  to  contribution. 
It  is  true  that  Mansfield,  C.  J.,  said  in  his  judgment  that 
the  prize  crew  had  consulted  the  mate  and  entrusted  him 
with  the  "navigation,  and  that  the  stores  seemed  to  have 
been  thrown  overboard  by  his  direction  ;  but  it  seems 
clear  that  the  mate's  evidence  to  this  effect  was  onlv  used 
by  his  Lordship  for  the  purpose  of  showing  that  the 
jettison  was  necessary.  As  the  ship  and  cargo  were  in 
the  possession  of  the  prize  crew,  the  mate's  position  was 
that  of  an  adviser  to  the  prize  master,  and  the  power  to 
decide  whether  the  sacrifice  should  be  made  or  not  was 
in  the  hands  of  the  latter  (6-). 

The  only  other  reported  English  case  in  which  the 
question  under  discussion  was  involved  is  Papaijanni  v. 
Grampian  S.S.  Co.  (t).     The  facts  were  that  the  defen- 

(s)  There  seems  to  have   been  no  person   who    had   succeeded   to   the 

suggestion,  even  in  the  judgment  of  master's  duty  to  the  owners  of  the 

Heath,  J.  {post,  p.  58),  that  as  the  property  to  take  the  necessary  steps 

ship  and  cargo  had  not  yet  been  con-  for    its  preservation,    and  not   as   a 

demned  by  a  Prize  Court,  the  -pviza  stranger  to  the  adventure, 

master  might  be    regarded   as    the  {t)  (189G),  1  Com.  Cas.  448. 

L.  E 


49 


50 


DEFINITION  AND  GENERAL  PRINCIPLES.         [CHAP.  I. 


By  the 
authority 
of  someone 
other  than 
the  master. 


d ants'  ship,  the  Birkhall,  being  on  fire,  was  taken  by  her 
master  into  the  port  of  Philippeville,  where  the  crew 
were  unable  by  their  own  exertions  to  extinguish  the 
fire.  The  captain  of  the  port,  to  whom  intimation  of 
the  state  of  affairs  had  been  given,  came  on  board,  and 
ordered  the  ship  to  be  scuttled.  The  master  afterwards 
stated  that  in  his  ojnnion  "  it  was  the  best  thing  for  ship 
and  cargo  to  scuttle  the  ship,  though  he  was  only  obey- 
ing the  orders  of  the  captain  of  the  port,  and  had  nothing 
to  do  with  it."  The  action  was  for  a  general  average 
contribution,  and  as  reported  the  judgment  of  Mathew,  J. 
is  contained  in  the  following  words  : — 

"  This  evidence  shows  that  what  was  done  was  in  the  interest 
of  ship  and  cargo.  There  is  no  evidence  that  there  was  any  other 
motive  for  scuttling  the  ship.  The  captain,  who  had  not  parted 
with  the  possession  of  his  ship,  did  not  object.  There  seems  to  be 
clear  evidence  that  he  sanctioned  what  was  done.  The  loss  must 
be  adjusted  as  a  general  average  sacrifice." 

The  statement  that  the  master  "  sanctioned  "  what 
was  done  suggests  that  Mathew,  J.  based  his  judgment 
on  a  finding  that  the  master  was  a  party  to  the  sacrifice. 
From  the  report,  however,  it  seems  clear  that  the  master 
did  not  propose  the  scuttling  of  the  ship,  that  he  was 
not  consulted  about  it,  and  was  powerless  to  prevent  it. 
Under  these  circumstances  his  approval  of  the  sacrifice 
seems  only  material  as  being  evidence  that  the  scuttling 
was  a  2^1'oper  measure ;  and  it  is  improbable  that  the 
learned  judge  intended  to  found  his  decision  on  the 
master's  assent,  except  in  so  far  as  it  was  evidence  of 
the  necessity  of  the  sacrifice. 

In  both  these  cases,  therefore,  the  only  view  con- 
sistent with  the  facts  seems  to  be  that  the  sacrifice  was 
made  by  a  stranger  to  the  adventure  ;  and  they  support  the 
conclusion  that  it  is  not  essential  that  the  sacrifice  should 


SECT.  VIA.]  SACRIFICE  NOT  MADE  BY  MASTER.  51 

have  been  made  under  the  authority  of  the  master,  but 
that  the  real  question  is  whether  it  was  necessary  for  the 
general  safety  (x).  Such  a  rule  is  consistent  with  the 
principle  of  natural  justice  on  which  the  law  of  general 
average  is  said  to  be  founded ;  and  if  this  be  the  correct 
view,  it  follows  that  a  sacrifice  made  by  the  crew  without 
the  master's  assent,  and  even  against  his  wish,  may  be 
general  average  (?/),  though  the  fact  that  the  master  was 
opposed  to  the  sacrifice  would  be  strong  evidence  that  it 
was  not  imperative,  and  the  clearest  proof  of  its  necessity 
would  therefore  be  required. 

A  different  rule  has,  however,  been  laid  down  by  a 
majority  in  Supreme  Court  of  the  United  States.  In  the 
case  of  a  ship  on  fire,  which  was  scuttled  by  the  harbour 
authorities,  it  was  held  that  "the  power  and  duty  of 
determining  what  part  of  the  common  adventure  shall 
be  sacrificQcl  for  the  safet}^  of  the  rest,  and  how  and  when 
the  sacrifice  shall  be  made,  appertain  to  the  master  of 
the  vessel,  magisier  navis,  as  the  person  intrusted  with  the 
command  and  the  safety  of  the  common  adventure,  and 
of  all  the  interests  comprised  therein,  for  the  benefit  of 
all  concerned,  or  to  some  one  who,  by  the  maritime  law, 
acts  under  him  or  succeeds  to  his  authority."  Applying 
this  rule,  the  Court  said  that  a  sacrifice  of  vessel  or  cargo 
by  the  act  of  a  stranger  to  the  adventure  gives  no 
right  of  contribution,  and  that  the  25ort  authorities  were 
strangers  to  the  maritime  adventure  and  to  all  interests 
included  therein  [2) . 

(x)  See  Carver,  §  374.  person  in  command.     As  a  general 

{y)  See    to    this    effect,    Benecke,  rule,    the   crew  have  no  authority, 

p.  172  ;  Baily,  p.  21 ;  Carver,  §  374.  without  orders,  to  make  a  jettison." 

See^also  Mouse's  Case,  infra,  p.  55  ;  (z)  RaUi  v.  Troop  {lS9i),  157  U.  S. 

but  cf.  Maclachlan  (4th  ed.),  p.  700.  386.     See  also  Minneapolis,  Sec.  S.S. 

Phillips,    §  1280,    says  :—"  The   act  Co.  v.  Manistee   Transit  Co.   (1907), 

should  be   that    of    the    master    or  1 56  Fed.  E.  424. 

e2 


52 


DEFINITION  AND  GENERAL  PRINCIPLES.        [CHAP.  I. 


Doctrine  of 
general 
average  only 
applicable  to 
maritime 
ttdventures. 


§  6  (b).  The  doctrine  of  general  average,  as  we  have 
seen,  is  derived  from  the  maritime  law,  and  there  is  no 
authority  at  common  law  for  extending  it  to  property 
not  engaged  in  a  common  maritime  adventure  in  the 
nature  of  a  voyage  (a). 

Thus,  if  a  fire  breaks  out  in  A. 's  warehouse  on  land, 
which  contains  goods  belonging  to  B.,  and  the  goods 
are  damaged  by  water  used  to  extinguish  the  fire,  any 
suggestion  that  B.  is  entitled  to  a  contribution  from  A. 
towards  his  loss  has  never  been  entertained. 

The  case  of  a  ship  or  hulk  used  as  a  floating  ware- 
house may  be  thought  more  doubtful,  but  it  is  submitted 
that  as  the  vessel  is  not  used  in  navigation,  there  is  no 
maritime  adventure  common  to  her  and  the  goods  which, 
she  contains  (b),  and  no  right  of  contribution  between 
their  respective  owners.] 


(«)  "  With  regard  to  salvage, 
general  average,  and  contribution," 
said  Bowen,  L.  J.,  in  Falckey.  Scottish 
Imperial  Ins.  Co.  (188G),  34  Ch.  D. 
234,  248,  "the  maritime  law  differs 
from  the  common  law.  This  has 
been  so  from  the  time  of  the  Eoman 
law  downward.  The  maritime  law, 
for  the  purposes  of  public  policy  and 
for  the  advantage  of  trade,  imposes 
in  these  cases  a  liability  which  is  a 
special  consequence  arising  out  of 
the  character  of  mercantile  enter- 
prises, the  nature  of  sea  perils,  and  the 
fact  that  the  thing  saved  was  saved 
under  great  stress  and  exceptional 
circumstances.  No  similar  doctrine 
applies  to  things  lost  upon  land,  nor 
to  anything  except  ships  or  goods  in 
peril  at  sea."  And  dealing  with  a 
contract  for  the  conveyance  of  goods 
by  ship  and  railway.  Lush,  J.,  said: 
"  Goods  may  be  damaged  in  their 
transit  in  ship  or  on  the  railway,  but 


general  average  contribution  can  only 
arise  in  respect  of  damage  on  ship." 
{Crooks  v.  Allan  (1879),  5  Q.  B.  D. 
38,  40.) 

(o)  Cf.  European  and  Australian 
Royal  Mail  Co.  v.  P.  and  0.  Steam 
Nav.  Co.  (1866),  12  Jur.  N.  S.  909, 
in  which  the  Court  of  Exchequer  held 
that  a  ship  which,  though  registered, 
had  been  anchored  at  the  same  plac& 
for  four  years  and  used  as  a  coal-hulk 
was  not  a ."  ship  "  within  the  mean- 
ing of  the  Merchant  Shipping  Act, 
1854,  s.  55,  which  required  British 
ships  to  be  transferred  by  bill  of  sale. 
A  ship  is  defined  in  sect.  2  of  the  Act 
as  including  every  description  of 
vessel  used  in  navigation,  not  pro- 
pelled by  oars.  See  also,  as  regards 
salvage,  the  judgment  of  Lord  Esher, 
M.  E.,  in  The  Gas  Float  Whitton 
(No.  2),  [1896]  P.  42;  affirmed, 
[1897]  A.  C.  374. 


53 


CHAPTER  II. 

SACRIFICES    OF   CARGO. 

SECT.  ^A«^ 

7.  Preliminary    '^^ 

8.  Jettison    ^^ 

9.  Jettison  of  deckload    ^" 

10.  Jettison  of  cargo  in  poop  or  forecastle '  ' 

11.  Jettison  on  account  of  fault  of  cargo    77 

12.  Damage  incidental  to  jettison    ol 

13.  Damage  done  in  quenching  a  fire 82 

14.  Cargo  burnt  as  fuel    "^ 

15.  Cargo  damaged  in  discharging 99 

16.  Cargo  damaged  by  voluntary  stranding    102 

17.  Cargo  damaged  by  cutting  aivay  mast 102 

18.  Cargo  given  for  salvage lOo 

19.  Cargo  sold  or  pledged  to  raise  funds     lO.'i 

19a.    Goods  not  forming  part  of  the  cargo 103 

20.  Sacrifices  of  freight    106 


§  7.  Following  out  the  division  of  the  subject  already 
laid  down  (§  1),  we  now  enter  upon  the  first  division, 
and  proceed  to  examine,  not  theoretically,  but  as  a 
matter  of  historical  fact,  what  losses  or  expenditures 
have  authoritatively  been  decided  by  the  English 
superior    courts   to    be    the    proper  subjects  of   general 


average. 


In  this  and  the  next  three  chapters,  which  together 
make  up  the  first  division  above  referred  to,  I  have  laid 
before  myself  as  my  main  purpose,  so  to  exhibit  what 


54  SACRIFICES  OF  CARGO.  [CHAP.  II. 

has  been  decided  in  the  past,  that  the  exhibition  may 
be  serviceable  towards  forecasting  questions  not  yet 
determined.  For  this  purpose  it  is  necessary  scrupu- 
lously, even  superstitiously,  to  set  forth  the  narrative 
unmixed  with,  or  at  least  unconfused  by,  speculation. 
The  narrative,  which  is  of  course  by  far  the  most 
valuable  portion,  I  have  endeavoured  to  make  clear  and 
complete;  never  purjDOsely  omitting  that  Avhich  may 
make  either  for  or  against  the  conclusions  which  I 
myself  may  favour,  nor  giving,  if  I  could  prevent  it, 
undue  prominence  to  either  side. 

For  convenience  of  reference,  this  question.  What 
losses  or  expenses  fall  within  the  definition  of  General 
Average?    is    divided    under   the   three    main    heads — 
Sacrifices  of  Cargo,  Sacrifices  of  parts  of  the  Ship,  and 
Extraordinary  Expenditures,  which  last,  on   account  of 
its  complexity,  is   yet   further  subdivided.      Of   these, 
sacrifices  of  cargo  are  taken  first,  not  only  because  one 
of   them,   namely,   jettison,   or   throwing    overboard    of 
cargo  to  lighten  a  ship,  was  by  far  the  earliest  to  come 
under  the  notice  of  the  English  courts,  but  also  because 
this  branch  of  the  subject  is  in  its  nature  certainly  the 
most  simple.     This  arises  from   the   circumstance  that 
the  sacrificing  of  cargo  must  always  be  an  act  out  of  the 
common   course  of  a  voyage,  as  being  a  thing  which 
never   takes  jolace  when  the  voyage  is  prosperous,  i.e., 
free  from  mishap  resulting  from  the  accidents  of  naviga- 
tion ;  which  cannot  be  said  of  either  of  the  other  two, 
since  some   ordinary  expenditures,   and  some  ordinary 
consumption  of  the  ship's  tackle  and  apparel  in  exposure 
to  the  wear  and  tear  of  a  voyage  under  varying  circum- 
stances of  weather,  must  always  be  expected  by  a  ship- 
owner ;    so    that   in   the   latter   two   cases   we   have   to 
distinguish  between  these  and  such  losses  as  are  properly 


SECT.  VII.]  JETTISON.  55 

to  be  treated  as  sacrifices, — a  difficultv  from  which  we 
are  exempted  in  dealing  with  sacrifices  of  cargo. 

In  the  present  chapter,  then,  we  must  begin  with 
Jettison. 


Jettison. 

§  8.  The  first,  and  this  only  incidental,  mention  of  Mouse's  Case. 
contribution  towards  jettison  to  be  found  in  our  law  books 
is  given  in  Coke's  Reports,  as  occurring  in  the  6th  year 
of  King  James  I.'s  reign,  under  the  title  of  Mouse^s 
Case  (a).  One  Mouse,  who  had  on  board  a  ferryboat,  for 
carriage  from  Gravesend  to  London,  a  casket  and  a 
hundred  and  thirteen  pounds,  sued  one  of  his  fellow 
passengers  for  throwing  these  effects  into  the  river.  The 
defence  made  was,  that  on  the  way  a  great  tempest 
arose,  and  it  was  necessary  to  throw  these  and  other 
effects  over  to  save  the  lives  of  all  on  board.  At  the 
trial  it  was  proved  that,  if  the  things  had  not  been  cast 
out  of  the  barge,  the  passengers  had  been  drowned ;  and 
that  levandi  causa  they  were  ejected,  some  by  one  pas- 
senger, and  some  by  another ;  and  upon  this  the  plaintiff 
was  nonsuit.  It  was  resolved  by  the  whole  court  that 
what  the  passengers  had  done,  being  to  save  their  lives, 
it  was  lawful  for  them  to  do.  The  report  continues  as 
follows : — 

"  It  was  also  resolved  that  although  the  ferryman 
surcharge  the  barge,  yet,  for  safety  of  the  lives  of  pas- 
sengers in  such  a  time  and  accident  of  necessity,  it  is 
lawful  for  any  passenger  to  cast  the  things  out  of  the 
barge,  and  the  owners  shall  have  their  remedy  upon  the 
surcharge  against  the  ferryman,  for  the  fault  was  in  him 
for  the   surcharge;    but  if  no  surcharge   was,   but  the 

(a)  (1609),  12  Co.  Eep.  63. 


56 


SACRIFICES  OF  CARGO. 


[chap.  II. 


The  Gralitu- 
dine. 


Master's 
agency  on 
behalf  of 


cargo ; 


in  case  of 
jettison  ; 


may  throw 
overboard 
entire  cargo : 


danger  accrued  only  by  the  act  of  God,  as  by  tempest, 
no  default  being  in  the  ferryman,  every  one  ought  to 
bear  his  loss  for  the  safeguard  and  life  of  a  man,  for 
interest  reipiiblicce  quod  homines  conserventur  .... 
Plucking  down  of  a  house,  &c.,  and  this  j»ro  bono  publico  ; 
et  conservatio  vitcc  Jiominis  est  bonum  publicum.  So  if  a 
tempest  arise  in  the  sea,  levandi  navis  causa,  and  for 
salvation  of  the  lives  of  men,  it  may  be  lawful  for 
passengers  to  cast  over  the  merchandizes"  (Z*). 

Lord    Stowell,  in    the   case   of    The    Gratitudine,  in 
1801,  speaks  as  follows  concerning  jettison  : — 

"  Though  in  the  ordinary  state  of  things  the  master 
of  a  shijD  is  a  stranger  to  the  cargo,  beyond  the  purposes 
of  safe  custody  and  conveyance,  yet,  in  cases  of  instant 
and  unforeseen  and  unj^rovided  necessity,  the  character 
of  agent  and  supercargo  is  forced  upon  him,  not  by  the 
immediate  act  and  appointment  of  the  owner,  but  by  the 
general  policy  of  the  law ;  unless  the  law  can  be  supposed 
to  mean  that  valuable  j^i'operty  in  his  hand  is  to  be  left 
without  protection  and  care.  It  must  unavoidably  be 
admitted  that  in  some  cases  he  must  exercise  the  dis- 
cretion of  an  authorized  agent  over  the  cargo,  as  well  in 
the  prosecution  of  the  voyage  at  sea  as  in  intermediate 
ports,  into  which  he  may  be  compelled  to  enter.  .  .  . 
The  case  of  throwing  overboard  parts  of  the  cargo  at  sea 
is  of  the  same  kind.  Nothing  can  be  better  settled  than 
that  the  master  has  a  right  to  exercise  this  power  in  case 
of  imminent  danger.  He  may  select  what  articles  he 
pleases ;  he  may  determine  what  quantity.  No  propor- 
tion is  limited;  a  fourth,  a  moiety,  three-fourths,  nay, 
in  cases  of  extreme  necessity,  when  the  lives  of  the  crew 
cannot  otherwise  be  saved  (c),  it  never  can  be  maintained 


{h)  Mouse's    Case   (1609),     12    Co.  (c)  As  to  sacrifices  made  "in  fear 

Eep.  63.  of  deatli,"  see  ante,  p.  25. 


SECT.  VIII.J  JETTISON.  ^^ 

that  lie  might  not  throw  the  whole  cargo  overboard. 
The  only  obligation  will  be,  that  the  ship  should  con- 
tribute its  average  proportion.     It  is  said,  this  power  of  ouiy  justifica- 

.  (.   tion,  extreme 

throwing  over  the  whole  cannot  be  but  m  cases  oi  danger. 
extreme  danger,  which  sweeps  all  ordinary  rules  before 
it :  and  so  it  is.  So  likewise  with  respect  to  any  propor- 
tion, he  can  be  justified  only  by  that  necessity :  nothing 
short  of  that  will  do :  the  mere  convenience  of  better 
sailing,  or  more  commodious  stowage,  will  not  justify 
him  to  throw  overboard  the  smallest  part.  It  must  be  a 
necessity  of  the  same  species,  though  perhaps  differing 
in  the  degree  "  (d). 

The  following  decision  was  in  the  year  1811.  The  ^'Jjj^/^'^^- 
ship  Brothers  was  captured  by  a  French  privateer,  which  raptors.) 
took  out  of  her  the  captain  and  all  the  crew,  except  the 
mate  and  two  men,  and  put  on  board  a  French  prize 
crew,  to  carry  her  to  the  port  of  Marseilles.  On  the  way 
a  storm  arose,  and  the  Frenchmen,  consulting  the  English 
mate,  and  with  his  approval,  threw  overboard  the  ship's 
guns,  anchors,  chains,  and  a  quantity  of  stores  from  the 
middle  deck,  in  order  to  lighten  the  ship.  Before 
reaching  Marseilles,  she  was  recaptured  by  the  mate  and 
English  seamen,  with  the  assistance  of  some  Italians  on 
board,  and  was  carried  into  Gibraltar.  The  owner  of  the 
ship  made  a  claim  on  the  owner  of  the  cargo,  for  contri- 
bution to  the  jettison.  This  was  resisted,  on  the  grounds, 
first,  that  the  jettison  was  made  without  necessity ; 
secondly,  that  it  was  made  while  the  ship  was  in  the 
enemy's  hands,  and  therefore  while  the  property  had 
passed  from  the  owners ;  and,  thirdly,  that  it  was  not 
made  by  the  master  or  mariners  of  the  ship,  who  alone  had 
an  implied  authority  to  do  so,  but  by  strangers.  The 
Court  of  Queen's  Bench,  however,  decided  in  favour  of 

(cZ)   The  (Iratitudine  (1801),  3  Chr.  Eob.  240,  at  p.  258. 


58 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Case  of 
jettison 
improperly 
made. 


Butler  V. 
Wildman. 
(Jettison  to 
keep  money 
out  of  enemy's 
hands,  not 
general 
averasre.) 


the  claim.  "  The  question,"  said  Sir  J.  Mansfield,  C.  J., 
"  merely  is,  whether  a  part  of  the  goods  being  thrown 
over  for  the  benefit  of  the  pro2)rietors  of  the  residue,  the 
owners  of  the  part  that  is  lost  shall  not  have  contribution 
against  them.  Whatever  the  law  might  be  in  a  case 
where  there  was  any  evidence  that  the  goods  were  grossly 
and  ignorantly  thrown  over,  that  is  not  this  case  ;  for, 
looking  on  the  testimony  of  the  mate,  I  see  that  his 
expression  was,  '  We  met  with  bad  weather,  and  were 
obliged  to  throw  these  articles  overboard.  It  was  neces- 
sary to  do  it.  I  should  not  have  thrown  the  stores  over- 
board if  I  could  have  got  at  the  cargo.  It  was  necessary 
to  the  preserving  our  lives,'  "  And  Heath,  J.,  said :  "  The 
property  was  not  altered  by  the  capture ;  there  was 
a  spes  recKperandi^  and  the  property  still  remained  in 
the  former  owners,  as  no  condemnation  had  taken 
place.  Tlie  law  of  average  and  contribution  had 
existed  for  ages  before  the  practice  of  insurance  was 
known  "  [e). 

In  a  subsequent  case,  when  a  Spanish  ship  was  on 
the  point  of  being  boarded  by  an  enemy's  vessel,  which 
captured  her  without  resistance,  the  master  threw  over- 
board a  bag  containing  100,000  dollars,  merely  to  pre- 
vent such  a  prize  falling  into  the  enemy's  hands.  A 
claim  was  made  upon  the  insurers  of  the  dollars,  and 
they  were  pronounced  liable  either  for  a  loss  by  jettison, 
or  at  any  rate  for  a  loss  ejusdem  generis  under  the  general 
words  "  all  other  losses  or  misfortunes."  In  this  case, 
the  motive  for  the  jettison  not  having  been  to  avert  some 
danger  threatening  ship  and  cargo  in  common,  it  was  not 


{e)  Price  v.  iVoWe  (1811),  4  Taunt.  average;  but  it  must  arise  from  that, 

12y.      "A  jettison  to    lighten    the  or   something  analogous."     {Dohson 

ship,"  says  Lord  Ellenborough,  "is  v.    Wilson   (1818),   3  Camp.  480,   at 

not  the  only  foundation  of  a  general  p.  486.) 


SECT.  VIII.]  ,     JETTISON. 

even  contended  at  the  trial  that  the  loss  should  be  treated 
as  a  general  average  (/). 

[Goods  jettisoned  still  belong  to  their  former  owners, 
and  if  recovered  from  the  sea  mav  be  reclaimed  bv  them 
on  payment  of  salvage  (//).] 


59 


Jettison  of  DecJdoad. 
S  9.   To   the  rule   that  iettison  is  general  average  Jettison  of 

-^  ,  •'  .  *^  .    °      deckload. 

there  is  one  ancient  and  well-established  exception : 
goods  carried  on  a  ship's  deck,  if  thrown  overboard,  are, 
generally  speaking,  not  made  good  by  contribution, 
although  if  saved  they  must  contriljute  like  anything 
else.  The  reason  is,  that  a  ship's  deck  is  generally  an 
improper  place  for  cargo  [h).  Where  this  is  not  so,  as  in 
some  coasting  (^)  and  other  trades,  where  the  carrying  of 
deck  loads  is  justified  by  custom,  the  exception  is  not 
applicable. 

It  may  be  convenient  in  this  place  to  set  forth  some-  Older  autho. 
what  fully  the  older  authorities  on  this  subject,  on  which 


(/)  Butler  V.    Wildman  (1820),  3      there,  and  not  as  a  sacrifice  for  tlie 


B.  &  Aid.  398.  Two  of  the  judges, 
Bayley,  J.,  and  Holroyd,  J.,  said 
expressly  that  in  order  to  bo  recover- 
able under  a  policy  of  insurance,  the 
jettison  need  not  be  such  as  gives 
rise  to  a  claim  for  general  average. 

{g)  2  Arnould,  §  925,  citing  Emeri- 
gon,  cxii.,  s.  40,  p.  596. 

(/i)  "  According  to  the  rules  of 
maritime  law,  the  placing  of  goods 
upon  the  deck  of  a  sea-going  ship  is 
improper  stowage,  because  they  are 
hindrances  to  the  safe  navigation  of 
the  vessel ;  and  their  j  ottison  is 
therefore  regarded,  in  a  question 
with  the  other  shippers  of  cargo,  as  a 
justifiable  riddance  of  incumbrances 
which   ought   never    to    have    been 


common  safety."  Per  Lord  Watson, 
Strang  v.  Steel  (1889),  14  App.  Cas.  at 
p.  609. 

The  cari-ying  of  cargo  on  deck  is 
absolutely  forbidden  by  many  old 
sea  laws :  e.g.,  by  the  decrees  of  the 
Hanseatic  League  (a.d.  1447),  2  Pard. 
483  ;  by  the  old  law  of  Genoa  (a.d. 
1 441),  4  Pard.  463 ;  by  the  Ordonnance 
of  Louis  XIV.,  as  under. 

(i)  Cf.  the  passage  in  the  judgment 
of  the  C.  A.  in  Wright  v.  Marwuod, 
infra,  p.  66,  which  suggests  a  more 
general  right  to  contribution  in  the 
case  of  coasting  voyages.  See  also 
per  Walton,  J.,  in  ApoUinaris  Co.  v. 
Nord  Deutsche  Ins.  Co.,  [1904]  1 
K.  B.  252,  259. 


60 


SACRIFICES  OF  CARGO. 


[chap.  II. 


the  English  law  has  been  based.  The  Ordonnance  of 
Louis  XIV.  contains  the  following  clause: — "  §  13.  Con- 
tribution cannot  be  demanded  for  the  payment  of  goods 
which  were  on  the  deck,  if  they  are  jettisoned  or  damaged 
by  the  jettison,  reserving  to  the  proprietor  his  recourse 
ao-ainst  the  master  :  but  thev  shall  nevertheless  contri- 
bute  if  they  are  saved"  (7^).  On  this  Valin  comments  as 
follows: — "The  goods  cannot  be  on  the  deck  except 
because  there  was  no  room  in  the  ship  to  place  them 
elsewhere,  or  through  the  negligence  of  the  master,  who 
ought  to  have  stowed  them  properly ;  and  in  either  case 


(A-)  ^^  Ne  pour ra  t sire  deraande  con- 
tribution pour  le  payement  des  effets 
qui  estoient  siir  le  tiUac,  s'ils  sontjettez 
ou  endommagez  par  le  jet,  sauf  au 
proprietaire  son  recours  contre  le 
maistre ;  et  ils  contrihueront  neant- 
moins  s'ils  sont sauvez."  (Ordonnance, 
Livi-e  iii.  tit.  8,  Art.  13:  4  Parti. 
383.)  This  principle,  says  M.  Par- 
dessus,  is  borrowed  from  the  Con- 
solado  del  Mare  and  the  Statute 
of  Marseilles.  The  passage  in  the 
Consolado  to  which  he  refers  runs 
as  follows: — "  "WTien  a  captain  has 
freighted  his  ship  to  merchants,  either 
for  a  lump  sum  or  at  so  much  per 
quintal,  if  he  puts  or  carries  mer- 
chandize on  the  deck  withoiit  the 
knowledge  and  consent  of  these 
merchants,  and  if  these  goods  placed 
on  the  deck  are  lost  or  spoiled, 
although  they  were  entered  on  the 
register  (log  book),  the  merchants 
who  have  freighted  the  ship  are  not 
obliged  to  indemnify  those  to  whom 
the  goods  thus  lost  or  damaged 
belong.  But  the  captain  is  bound 
to  restore  them,  or  pay  their  value 
to  the  owner  of  them.  If,  however, 
the  shipper  of  these  goods  has  agreed 
with   the   captain  that  he  may  put 


them  on  deck,  or  where  he  pleases, 
then,  if  the  loss  is  entered  in  the 
log  book,  or  otherwise  proved,  the 
captain  is  not  answerable ;  they  may 
be  lost  or  damaged  for  the  account 
of  the  proprietors;  for  neither  the 
captain  nor  the  merchants  who  are 
on  board  are  liable  for  any  indemnity 
towards  him  who  has  put  his  goods 
on  board  with  this  condition."  (Con- 
solado, Cap.  CXLI.  (186);  2  Pard. 
155.)  The  other  reference  is  to  an 
old  Statute  of  Marseilles,  dated  a.d. 
1253  to  1255,  which  directs  that  no 
person,  master  or  owner  of  the  ship, 
or  merchants,  shall  voluntarily  load 
or  carry  merchandize  above  the  deck 
of  any  ship ;  and  if  he  do  so,  and  the 
goods  so  carried  are  thrown  over- 
board in  a  storm  or  to  avoid  a  cruiser, 
he  by  whose  will  it  was  so  carried 
shall  recover  nothing  from  anyone ; 
and  it  shall  not  be  lawful  for  him 
or  any  others  to  stipulate  to  the 
contrary.  (Cap.  19 ;  4  Pard.  275.) 
The  framer  of  this  statute,  probably 
more  than  6U0  years  ago,  arrived  at 
the  same  conclusion  in  this  matter 
as  our  Court  of  Appeal  in  Burton  v. 
English  (see  below). 


SECT.  IX.]  DECKLOAD  JETTISON.  61 

it  is  his  fault,  since  he  is  no  more  at  liberty  to  overload 
his  ship  than  to  expose  the  goods  to  the  risks  of  such  a 
position.  .  .  .  The  reason  why  this  article  allows  no 
compensation  for  goods  jettisoned  or  damaged  which  were 
on  the  deck  is,  that  since  they  could  not  fail  to  embarrass 
the  manoauvres,  the  presumption  is  that  they  would  be 
jettisoned  before  any  necessity  for  jettison,  and  only 
because  they  were  a  hindrance  to  the  proper  working  of 
the  ship.  .  .  .  But  the  rules  laid  down  in  this  article 
(§  13)  do  not  apply  to  boats  and  other  small  vessels 
going  from  port  to  port,  where  the  custom  is  to  load 
goods  on  the  deck  as  well  as  below"  (/ ).  And  Emerigon, 
after  setting  forth  these  comments  of  Valin,  adds:  "  The 
recourse  against  the  master  has  no  place,  if  the  goods 
were  placed  on  deck  with  the  merchant's  consent."  "  The 
Statute  of  Marseilles,"  he  adds,  "permits  the  carrying- 
on  deck  of  horses,  cattle,  and  wool  coming  from  Barbary. 
That,  however,  would  hold  good  so  far  as  to  exculpate 
the  captain  as  towards  the  proprietors  of  such  effects  ; 
but  not  at  all  to  admit  the  bringing  into  general  average 
of  such  goods  if  thrown  overboard,  when  they  had  been 
laden  on  the  deck  without  the  consent  of  the  other  ship- 
pers "(wz).  Abbott  says:  "The  French  Ordinance  in 
express  terms  excludes  from  the  benefit  of  general 
average  goods  stowed  upon  the  deck  of  the  ship,  and  the 
same  rule  prevails  in  practice  in  this  country.  Goods  so 
stowed  may  in  many  cases  obstruct  the  management  of 
the  vessel,  and,  except  in  cases  where  usage  may  have 
sanctioned  the  practice,  the  master  ought  not  to  stow 
them  there  without  the  consent  of  the  merchant"  («). 


(Z)  Valin,   Comm.  tit.  8,  Art.  13:  1827. 
p.  621  of  edit.  1829.  (?0  Abbott   on  Shipinng,  Part   4, 

(m)  Emerigon,    Traite    des  Assu-  Chap.  10,  §  3 :    p.  355  of  5th  edit.  : 

ranees,  Chap.  12,  §  42  :  p.  63  of  edit.  p.  785  of  14th  edit. 


62 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Ancient 
practice  in 
Ena-land. 


GouMy. Oliver. 


In  supposed  conformity  with  these  authorities,  the 
practice  in  this  country,  followed  by  adjusters  for  a  long 
course  of  years,  was  to  exclude  from  the  benefit  of 
general  average  all  cargo  carried  on  deck :  if  carried 
without  the  shipper's  consent,  the  loss  by  jettison  or 
accident  w^as  made  to  fall  on  the  shipowner ;  if  with  his 
consent,  the  loss  from  either  of  these  causes  fell  on  the 
shipper. 

The  party  liable,  shipowner  or  shipper,  as  the  case 
might  be,  usually  protected  himself  by  insurance.  Even 
where  there  was  a  well-known  usage  of  trade  to  carry 
deckloads,  as  in  the  case  of  the  North  American  and 
Baltic  timber  trades,  the  same  rule  was  followed ;  though 
this,  as  appears  from  the  above  citation  of  the  authorities, 
was  evidently  a  mistake. 

This  practice  was  disturbed  in  the  year  1827,  by 
the  decision  of  the  Court  of  Common  Pleas  in  Gould  v. 
Oliver  [o).  This  was  a  claim  made  by  the  shipper  of  a 
deckload  of  timber,  which  for  the  general  safety  had 
been  thrown  from  the  deck  of  a  ship  bound  from  Quebec 
to  London,  upon  the  owner  of  the  ship,  for  contribution 
to  the  loss  as  general  average.  It  was  admitted  on  both 
sides  that  it  was  the  custom  of  the  trade  between  those 
ports  to  carry  a  portion  of  the  timber  on  deck.  The 
shipowner  pleaded,  however,  that  there  was  no  custom  to 
treat  such  deckloads,  if  jettisoned,  as  matter  of  general 
average  ;  to  which  it  was  demurred  that  the  right  to 
contribution  was  a  conclusion  of  law  necessarily  following 
from  the  custom  to  carry  a  deckload.  Tindal,  C.  J., 
delivering  the  judgment  of  the  Court,  after  a  full  review 
of  the  authorities,  decided  in  favour  of  the  claim  (j(?). 


(o)  4  Bing.  N.  C.  134. 
\p)  Gould  Y.  Oliver  {1831),  i  Bing. 
N.    C.    134.      See   also   Milwurd   v. 


Hihhert  (1842),  3  Q.  B.  120,  where  it 
was  decided  that  the  underwriters  on 
ship  were  liable  to  contribution,  as 


SECT.  IX.]  DECKLOAD  JETTISON. 


63 


This  decision  was  not  accepted  at  Lloyd's  and  practice  of 
amongst  the  English  adjusters  as  final ;  and  there  ensued  tnbution." 
some  unsatisfactory  litigation,  and  a  change  of  practice, 
which  may  be  pronounced  even  more  unsatisfactory.  A 
second  action  between  the  same  parties,  Gould  v.  Oliver^  GouMw.  ouver 
was  commenced,  the  owner  of  the  deckload  now  claiming 
from  the  shipowner,  not,  as  before,  a  mere  contribution 
towards  his  loss,  but  the  full  value  of  the  deckload ;  and 
it  was  alleged  as  a  fact  that  the  quantity  shipped  on  deck 
in  this  particular  case  was  excessive  and  improper.  On 
the  evidence,  the  jury  found  that  the  stowing  on  deck 
was  improper  and  such  as  to  increase  the  perils  of  the 
navigation  ;  whereupon  judgment  was  given  against  the 
shipowner.  In  the  discussion  which  ensued  in  the  Court 
of  Common  Pleas,  it  was  held  that  a  custom  to  carry  a 
deckload  might  be  modified  by  a  custom  not  to  pay  for 
it  as  general  average  in  case  of  jettison  ;  although,  it  was 
added,  if  the  shipper  had  assented  or  made  himself  a 
party  to  that  mode  of  stowage,  he  personally  w^ould  be 
liable  to  pay  his  share  (a).     Shortly  after  this  decision  a  Practice  of 

^  .  .  ,  "general  con - 

practice  was  introduced  amongst  adjusters,  which,  being  tribution." 
accepted  by  underwriters  and  shipowners,  presently 
began  to  be  talked  of  as  a  custom,  and  was  distinguished 
from  general  average  proper  by  the  name  of  "general 
contribution."  This  practice  was  based  on  the  theory, 
erroneously  thought  to  follow  from  these  two  decisions, 
that  a  jettison  of  deckload  is  in  no  case  properly  the 
subject  of  general  average,  whatever  be  the  custom  of 
the  trade  ;  but  that  any  party,  be  he  merchant,  sliip- 
owner,  or  underwriter,  who  has  expressly  consented  to  the 


general    average,    for  a   jettison   of  {q)  CojJcZ  v.  OZ/wer  (1840),  2  Mann, 

pigs  from  Ireland,  carried  on  deck  in  &  Gr.  208.     See  also  Miller  v.  Tltlier- 

accordance  with  the  custom  of   the  inytun  (1861-2),  6  H.  &  N.  278;  7 

trade.  H.  &  N.  954. 


64  SACRIFICES  OF  CARGO.  [cHAP.  II. 

shipment  on  deck,  must  in  case  of  jettison  contribute 
towards  the  loss,  as  if  ii  were  a  general  average  (r).  The 
attempt  to  carry  this  idea  into  practice  naturally  led  to 
complications  and  some  disputes  :  perhaps  the  principal 
matter  of  difference  being  the  question,  whether,  in 
adjusting  this  quasi  general  average,  the  property  of 
those  who  had  not  assented  to  the  deck-loading,  and 
therefore  were  not  liable  to  contribute,  should  or  should 
not  be  brouo-ht  in  as  a  nominal  contributor. 

All  these  difficulties,  however,  which  in  former  edi- 
tions of  this  book  had  to  be  discussed  at  some  length, 
may  now  be  passed  over,  later  decisions  having  happily 
swept  away  this  system  of  ''general  contribution." 
Wnghtv.  The  first  of  these  later  decisions  is  Wright  v.  Mar- 

Cauk  jet-  zvood,  in  the  Court  of  Appeal  [s).  The  steamer  Gladys 
deck.*^  ™"^  shipped  100  head  of  cattle  on  her  upper  deck,  to  be 
carried  from  New  York  to  Portsmouth,  England,  under  a 
written  agreement  w^itli  the  shippers,  specifying  that  the 
cattle  were  to  be  carried  on  deck.  The  bill  of  lading 
contained  the  following  clause: — ''Not  accountable  for 
mortality  or  for  any  accident  or  injury  of  any  kind  or 
nature  whatever."  On  the  voyage,  owing  to  stress  of 
weather,  the  master,  justifiably  for  the  safety  of  the  ship, 
threw  overboard  the  whole  of  these  cattle.  The  owner 
of  the  cattle  brought  an  action  against  the  shipowner  for 
his  share  of  the  loss  as  "  general  contribution."  At  the 
trial,  no  evidence  was  given  of  any  custom  allowing 
cattle  to  be  carried  as  a  deck  cargo,  but  the  following 
passage  from  the  judgment  of  Willes,  J.,  in  Johnson  v. 
Chapman  (t),  was  cited  as  an  authority  in  favour  of  the 

(r)  Some  expressions  of  Willes,  J.,  [s)  (1881),  7  Q.  B.  D.  at  p.  62. 

in   Johnson  v.    Chapman  (1865),    19  («)  (1865),  19  C.  B.  (X.  S.)  563,  at 

C.  B.  (N.  S.)  563,  at  p.  583,  certainly  p.  583. 
lend  a  colour  to  this  doctrine. 


SECT.  IX.]  DECKLOAD  JETTISON. 


65 


claim:   "This  is  an  action  by  the  shipper  of  the  cargo  Dictum  of 

1  1   .  1       1  1         i  j_  Jf'illes,  J.,  in 

against  the  shipowner,  and  the  charter-party  contem-  johnsonv. 
plates  a  deck  cargo.  .  .  .  Then,  immediately  you 
find  that  the  deck  cargo  is  within  the  contemplation  of 
the  parties,  you  must  deal  with  it  as  if  shipping  a  deck 
cargo  was  lawful.  When  you  have  established  that  it  is 
a  deck  cargo  lawfully  there  by  the  contract  of  the  parties, 
it  becomes  subject  to  the  rule  of  general  average  "(^). 
Accordingly,  the  jury  was  directed  to  find  for  'the  plain- 
tiff. •  On  application  for  a  new  trial  to  the  Queen's  Bench 
Division,  the  judges  were  of  opinion  that  the  present 
action  was  not  distinguishable  in  principle  from  Johnson 
V.  Chapman,  and  refused  the  application.  This  went  up 
to  the  Court  of  Appeal,  where  the  whole  question  was 
fully  argued.  The  judgment  of  the  court  (Lord  Cole- 
ridge, C.  J.,  Bramwell  and  Baggallay,  L.  JJ.)  was 
delivered  by  Bramwell,  L.  J. 

"  The  plaintiffs,"  he  said,  ''  seek  to  recover  ag-aiiist  the  defeu-  Bnonwell, 
dants,  ship  and  freight  owners,  a  contribution  as  or  in  the  natvire 
of  general  average  in  respect  of  the  goods  of  the  plaintiff  jettisoned 
for  the  safety  of  ship  and  cargo.  It  is  all-important  to  note  that 
the  plaintiffs'  goods  were  deck  cargo,  loaded  on  deck  with  their 
assent,  on  a  general  ship,  not  one  chartered  to  them(M),  no  doubt 

{t)  (1865),  19  C.  B.  (N.  S.)  563,  at  the  decisions,  without  himself  siig- 

p.  583.  gesting  any  reason  for  the  distinction, 

(m)  These  words  would  seem  to  or,  indeed,  expressing  any  opinion 
imply  a  possible  distinction  between  upon  it.  It  would  be  regrettable  if 
the  cases  of  a  chartered  ship  and  a  matter  already  sufficiently  com- 
a  general  ship  having  on  board  goods  plicated  should  be  encumbered  by  a 
not  belonging  to  the  charterers  ;  and  further  complication  for  which  no 
it  might  well  have  been  argued  that  satisfactory  reason  could  be  given, 
in  the  former  case  Johnson  v.  Chap-  But  in  the  subsequent  case  of  Burton 
man  still  holds  good  as  an  authority  v.  English,  where,  as  the  facts  were  set 
for  the  position  that  as  between  forth  in  the  Queen's  Bench  Division, 
charterer  and  shipowner  there  ought  the  ship  was  chartered  for  a  full 
to  be  a  contribution.  Mr.  Carver,  cargo,  no  attempt  seems  to  have  been 
in  his  book  on  Carriage  by  Sea,  made,  even  in  argument,  to  rely  on 
§  380,  sets  forth  the  law  in  this  this  distinction ;  and  indeed  the  Ian- 
sense,  only,  however,  as  recording  guage  of  Cave,  J.,  in  the  judgment 
L.  F 


L.J. 


66 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Exceptions  : 
coasting 
voyages  and 
custom  of 
trade. 


Concerning 
"  general con- 
tribiition." 


at  a  lower  freight  than  if  they  had  been,  as  we  suppose  they  might 
have  been,  below  deck;  and  that  there  is  no  custom  alleged  bearing 
upon  the  case.  Now  when  such  sacrifice  is  made,  as  was  here,  for 
the  common  good,  as  a  rule  it  comes  within  general  average,  and 
must  be  borne  proportionally  by  those  interested.  It  is  not  necessary 
to  say  what  is  the  origin  or  principle  of  the  rule,  but,  to  judge  from 
the  way  it  is  claimed  in  England,  it  would  seem  to  arise  from  an 
implied  contract  inter  se  to  contribute  by  those  interested.  To  this 
rule  there  is  an  exception,  viz.,  deck  cargo  jettisoned  is  not  entitled 
to  general  average  contribution.  Here,  again,  the  reason  or  prin- 
ciple is  perhaps  not  important:  so  is  the  law.  The  reason,  amongst 
others,  however,  assigned  is,  that  deck  cargo  is  a  dangerous  cargo, 
certain  to  be  jettisoned  before  any  other,  and  liable  to  be  unduly 
jettisoned,  owing  to  the  facility  of  doing  it,  when  cargo  under  hatches 
would  not  be.  So  that,  if  we  treat  general  average  as  matter  of 
implied  contract,  that  ought  not  to  be  implied  where  risk  and 
benefit  are  not  in  fair  proportion;  if  as  a  matter  of  positive  law 
that  is  the  reason  which  caused  the  exception.  If  the  goods  jetti- 
soned are  loaded  on  deck  without  the  shipper's  consent,  the  ship- 
owner is  liable  to  the  goods  owner;  if  with  his  consent,  still  other 
cargo-owners  will  not  be.  To  this  exception,  however,  there  are 
two  exceptions,  which  perhaps  resolve  themselves  into  one,  viz., 
that  coasting  vessels  are  without  the  exception,  and  also  those  cases 
where  by  custom  the  deck  cargo  is  one  customary  in  the  trade,  and 
perhaps  also  from  the  port. 

"It  is  said  that  there  is  a  further  exception,  viz.,  where  by 
agreement  with  the  shipper  the  cargo  is  shipped  on  deck.  We  are 
of  a  different  opinion."  And  then  the  learned  judge  proceeds  to 
o-ive  the  reasons  of  the  Court  for  arriving  at  this  conclusion. 
"There  is  nothing,"  he  says,  "in  the  older  authorities  to  warrant 
that  doctrine.  No  reason  can  be  given  for  the  claim  as  of  general 
average.  Whatever  may  be  the  agreement  between  the  shipowner 
and  the  owner  of  the  deckload,  the  other  cargo-owners  are  no  parties 
to  it,  nor  bound  to  enquire  into  it  or  notice  it,  as  they  are  bound 
to  take  notice  of  a  custom.  Nor  is  it  established  by  authority." 
He  shows  this  by  a  detailed  criticism  of  the  previous  cases.  Finally, 
he  considers  the  claim  disproved,  by  reason  of  the  absurd  conse- 


(10  Q.  B.  D.  at  pp.  430,  431)  shows 
that,  had  the  attempt  been  made, 
the  Court  would  have  negatived  it. 


(See,  however,  the  discussion  of  this 
question,  infra,  p.  72  et  secj.) 


SECT.  IX.]  DECKLOAD  JETTISON.  67 

quences  which  would  ensue,  whether  we  did  or  did  not  bring  in 
the  under-deck  cargo  as  a  nominal  contributor  (x) . 

Burton  v.  English,  likewise  in  the  Court  of  Appeal,  nnrton  v. 
carries  the  principle  laid  down  in  Gould  v.  Oliver  {y)  a  Effe!-fof 
step  further,  establishing  that  where  cargo  is  carried  on  cwl. 
deck  under  a  custom  of  the  trade,  a  jettison  of  it  must 
be  treated  as  general  average,  notwithstanding  a  clause 
in  the  charter-party  declaring  that  the  deckload  is  to  be 
' ' at  merchant's  risk."  In  this  case  the  ship  was  chartered 
to  carry  a  full  cargo  of  timber  from  a  port  in  the  Baltic 
for  London,  and  the  charter-party  contained  the  clause, 
"  The  steamer  to  be  provided  with  a  deckload,  if  re- 
quired, at  full  freight,  but  at  merchant's  risk."  It  was 
proved  that  there  was  a  custom  or  usage  in  such  voyages 
to  carry  a  deckload  of  timber.  In  the  Queen's  Bench 
Division  it  Avas  decided  that  the  words  "at  merchant's 
risk"  exempted  the  shipowner  from  liability  to  contribute 
towards  the  loss  of  deck-cargo  lawfully  jettisoned  (z). 

The  reasons  given  by  Cave,  J.,  who  delivered  the  Cave,  j. 
judgment  of  the  Queen's  Bench  Division  (Cave  and 
Day,  JJ.),  were,  in  substance,  that  there  was  no  reason 
why  the  shipowner  should  not,  if  he  pleased,  introduce 
into  the  bill  of  lading  clauses  modifyino:  the  ri<>hts  to 
general  average ;  and  that  it  was  difficult  to  attach  any 
other  meaning  to  the  words  "at  shipper's  risk"  than 
that  the  shipper  was  to  take  the  risk  of  jettison,  since 
the  shipowner  was  already  protected  by  the  general 
terms  of  the  charter-party.  This  judgment,  however,  was 
reversed  in  the  Court  of  Appeal.     The  grounds  on  which 

(r)   Writjht  v.   Maruwud  (1881),   7  lading  sot  forth  above. 

■Q,.  B.  D.  (i2.     It  will  be  noticed  that  (</)  (1837),  4  Biug.  N.  C.  134. 

throughout      the      arguments      and  (z)  Burton   v.    Eiiylish   (1SS3),    10 

judgment  in  this  case  no  notice  was  Q.  B.  B.  426. 
taken  of   the   claiise   in   the  bill  of 

f2 


68 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Brett,  M.  R. 


General  rule 
for  construing- 
special  clauses 
in  case  of 
doubt. 

Basis  of 
general 
average, 
master's 
agency  on 
behalf  of 
party  whose 
property  is 
sacrificed . 


Right  to 
general 
average  not  a 
matter  of 
contract,  but 
of  natural 
justice. 


the  learned  judges  went  are   even  more   deserving  of 
attention  than  the  decision  itself.     Brett,  M.  R.,  said: — 

"It  is  obvious  that  tliis  "  [the  clause  above  cited]  "is  a  stipu- 
lation in  favour  of  the  shipowners,  for  in  order  to  earn  a  larger 
freight  they  may  require  part  of  the  cargo  to  be  deck  cargo,  and 
then  it  is  to  be  at  the  merchant's  risk.  .  .  .  The  stipulation  is 
in  favour  of  the  sliipowners,  and  is  in  restriction  of  their  liability 
under  their  contract  to  carry.  The  general  rule  is  that  where  there 
is  any  doubt  as  to  the  construction  of  any  stipulation  in  a  contract, 
one  ought  to  construe  it  strictly  against  the  party  in  whose  favour 
it  has  been  made.  Now  by  what  right  is  it  that  the  owner  of  cargo 
can  make  the  shipowner  liable  to  contribute  in  respect  of  its  loss? 
If  the  liability  is  in  consequence  of  any  act  of  any  of  his  servants 
for  which  the  shipowner  would  have  been  liable  but  for  this  stipu- 
lation, then  it  follows  that  the  defendants  are  freed  from  liability. 
I  should  say  that  this  stipulation  would  cover  any  act  of  the  master 
or  crew  which  being  done  by  them  as  servants  of  the  shipowner 
would  otherwise  make  him  liable;  it  therefore  covers  the  case  of 
improper  jettison,  also  a  loss  caused  by  a  collision  or  stranding 
owing  to  the  negligence  of  the  master  or  crew.  Does  it,  however, 
cover  this  claim  for  contribution?  How  does  such  a  claim  arise? 
In  theory  it  arises  from  an  act  done  b}-  the  master  of  the  ship,  not 
as  the  servant  of  the  shipowner,  but  as  the  servant  of  the  cargo- 
owner,  a  relation  which  is  imposed  on  him  by  the  necessity  of  the 
case.  It  arises  by  reason  of  a  voluntary  sacrifice  by  the  cargo- 
owner  for  the  benefit  of  the  ship  and  freight,  and  not  from  any  act 
done  b}'  the  shipowner  at  all.  By  what  law  does  the  right  arise  to 
general  average  contribution?  Lord  Bramwell,  in  his  judgment  in 
Wright  v.  Marwood(a),  considers  it  to  arise  from  an  implied  con- 
tract; but  although  I  always  have  great  doubt  when  I  differ  from 
Lord  Bramwell,  I  do  not  think  that  it  forms  any  part  of  the  con- 
tract to  carry,  and  that  it  does  not  arise  from  any  contract  at  all, 
but  from  the  old  Rhodian  laws,  and  has  become  incorporated  into 
the  law  of  England  as  the  law  of  the  ocean.  It  is  not  as  a  matter 
of  contract,  but  in  consequence  of  a  common  danger,  where  natural 
justice  requires  that  all  should  contribute  to  indemnify  for  the  loss 
of  property  Avhich  is  sacrificed  by  one  in  order  that  the  whole  ad- 
venture may  be  saved.     If  this  be  so,  the  liability  to  contribute 


(o)  (1881).  7  Q.  B.  I).  62,  at  p.  67. 


SECT.  IX.]  DECKLOAD  JETTISON. 


6» 


does  not  arise  out  of  any  contract  at  all,  and  is  not  covered  by  the 

stipulation  in  the  charter-party  on  Avhich  the  defendants  rely.     I 

therefore  disagree  with  the  decision  of  the  Divisional  Court  in  this 

case.     The  difficidty  which  my  brother  Cave  felt  as  to  the  meaning 

of  the  Avords  in  the  charter-party  does  not  arise,  because  the  acts 

of  the  captain  with  reference  to  properly  or  improperly  jettisoning  In  properly  or 

part  of  the  cargo  are  not  both  done  by  him  in  the  same  capacity:   ]^tti!,3iD^ 

one  is  done  by  him  as  the  agent  of  the  cargo-owner,  and  the  other  master  is 

T    ,1  •    -I     Ji     ,    aarent  for 
as  the  servant  of  the  shipowner.     J^  or  tliese  reasons  i  think  that  tilfPerent 

the  liability  to  general  average  contribution  is  not  covered  by  any  principals. 

words  of  the  contract  in  the  charter-party,  and  consequently  that 

the  defendants  are  liable  "(&). 

The  other  learned  judges  (Baggallay  and  Bowen, 
L.J  J.)  concurred;  both,  substantially,  on  the  grounds 
that  the  clause  must  be  interpreted  most  strictly  against 
the  shipowner,  and  that  the  terms  of  it  were  not  clear 
enough  to  absolve  him.  Bowen,  L.  J.,  on  the  matter  of 
principle  in  difference,  if  we  may  call  it  so,  between  Lord 
Bramwell  and  the  Master  of  the  Rolls,  as  to  the  origin  of 
the  right  to  general  average,  took  a  somewhat  middle 
ground,  for  reasons  which  we  have  already  set  forth  (c). 

To  constitute  a  custom  of  the  trade  to  carry  cargo  Bixony.Royai 
on  deck,  much  more  is  required  than  the  occasional  or  shipping  Co. 
even  frequent  carrying  of  deckloads.    Cotton,  for  example,  ^^^^011^0? 
used  often  to  be  carried  on  the  decks  of  steamers  between  ^''^^^■. 

Curry  mg 

ports  in  America  and  this   country.      This  w^as   done,  ""^^^^^J^ 
sometimes    by    express    ao-reement   wdtli    the    sliip])ers,  steamer  not 

J  i  ^  1X7    the  custom  of 

sometimes  without  the  shipper's  consent  or  even  know-  ^"^^"^"^  between 

■*■  -"•  America  and 

ledge,  the  shipowner  in  the  latter  case,  according  to  the  Engiaud. 
general  understanding  for  many  years,  taking  the  risk 
upon  himself.     An  attempt  was  made  to  establish  that 
this  practice  amounted  to  a  custom  of  the  trade,  such  as 
to  entitle  a  deckload  so  carried,  if  properly  jettisoned,  to 

{h)  Burton  v.  EiKjlish  (1883),  12  Q.  B.  D.  218,  at  jip.  219—221. 
(c)  Ante,  §  3,  p.  30. 


70 


SACRIFICES  OF  CARGO.  [CHAP.  II. 


be  treated  as  general  average.  The  action  was  brought 
by  the  owner  of  the  deckload  against  the  shipowner,  for 
the  full  value  of  the  deckload :  the  shipowner  contended 
that  he  was  not  liable  for  more  than  his  share  of  the  loss, 
treated  as  general  average.  The  case  went  to  the  Court 
of  Appeal,  and  was  there  decided  against  the  shipowner. 
Brett,  M.ii.  ^yq%  M.  R.  (afterwards  Lord  Esher),  said,  first,  that  if 
this  action  were  to  be  treated  as  an  action  upon  the  bill 
of  lading,  the  defendant  was  liable,  because  the  goods 
were  not  delivered  in  Liverpool,  never  mind  how,  whether 
they  were  thrown  overboard  or  fell  overboard,  and  the 
defendants  had  contracted  to  deliver  them  in  Liverpool, 
subject  to  certain  exceptions,  which  exceptions  are  to  be 
taken  as  struck  out  of  the  bill  of  lading  if  the  cargo  was 
improperly  stowed  on  the  deck ;  as  it  would  be,  unless  it 
could  be  sliown  that  the  plaintiff  had  impliedly  given 
leave  to  stow  them  there.     How  could  this  be  shown  ? 

''It  is  suggested, "'  said  the  learned  judge,  "that  there  is  a 
practice  which  it  must  be  taken  that  they  knew.  Now  the  only 
practice  which  it  can  be  taken  in  law  that  they  impliedly  knew 
(that  is,  taken  that  they  knew,  although  they  did  not)  is  a  general 
practice;  so  general  and  universal  in  the  trade  and  at  the  port 
from  which  these  goods  were  taken,  that  everybody  who  ships  cottoti 
on  board  a  ship  at  New  Orleans  for  England  must  be  taken  to  know 
that  his  goods  probably  will,  or  may  probably  be  put  on  deck. 
To  say  that  there  is  a  practice,  or  to  say  that  there  is  a 
frequent  practice,  is  only  to  say  that  it  is  sometimes  done,  leaving 
it  open  that  as  often,  or  oftener,  it  is  not  done.  Such  evidence  as 
that  is  not  evidence  to  go  to  a  jury,  upon  which  they  Avould  be 
justified  in  finding  a  general  usage."  He  then  proceeded  to  show 
how  the  case  would  stand,  wholly  independent  of  the  bill  of  lading. 
"  WhoU}'  independent  of  the  bill  of  lading,"  continued  the  learned 
judge,  "  if  goods  are  loaded  on  deck,  unless  there  is  a  general  custom 
that  they  should  be  so  loaded,  so  that  everybody  Avho  puts  his  goods 
on  board  that  ship  ought  to  know,  or  must  be  taken  to  know,  that 
other  people's  goods,  if  not  his,  are  loaded  on  deck,  then  the  captain 
has  no  authority  to  bind  anybody  b}'  the  jettisoning  of  those  goods 


SECT.  IX.]  DECKLOAD  JETTISON.  71 

which  are  on  deck,  so  as  to  make  a  liability  for  general  average 
contribution.  If  that  is  so,  these  goods  were  thrown  overboard  by 
the  captain  .  .  .  under  such  circumstances  that  he  had  not  the  autho- 
rity of  the  plaintiffs  to  throAv  them  overboard  so  as  to  entitle  the 
plaintiff's  to  a  general  average  contribution,  and  therefore  the  goods 
are  not  to  be  taken  as  thrown  over  by  the  authority  of  the  plaintiffs 
at  all.  If  they  are  not  tlirown  over  by  the  authority  of  the  plaintiffs, 
then  there  is  no  question  of  general  average  contribution  which 
can  be  raised  at  all;  and  the  whole  question  comes  back  to  being, 
what  arc  their  rights  under  the  bill  of  lading?  and  under  the  bill 
of  lading,  as  I  have  said,  by  reason  of  what  has  happened  they 
are  entitled  to  claim  the  value  of  the  goods  from  the  shijoowners  "  (^d). 

The  law  of  deckload   iettison,  tlien,   may  now  be  Nummary  of 

•',.','         -^      .  law  of  deck- 

summed  up  as  follows: — A  jettison  of  goods  carried  on  load  jettison. 

deck  is  not   made   good  by  contribution,  except  where 

there  is  a  general   custom   of  trade,   in  the   particular 

voyage,  to  carry  deckloads.     Such  a  custom  there  is  with 

regard  to  the  timber  trade  from  the  Baltic  and  British 

North  America.     Even  here,  however,  it  is  to  be  noted 

that  wherever  restrictions  upon    such   deckloading   are 

imposed  by  a   British   statute,  and  are  violated,  as  by 

carrying  too  large  a  deckload,  or  more  tlian  is  permitted 

for  the  particular  season  of  the  year,  no  claim   can  be 

made  for  a  jettison  of  what  was  thus  unlawfully  laden. 

The  occasional  or  surreptitious  carrying  of  deckloads, 

however  frequent  in  particular  voyages,  as  in  the  case  of 

cotton  in  steamers  from  America,  does  not  constitute  a 

custom  of  the  trade.     Where  there  is  no  custom  to  carry 

deckloads,   there    is    no    contribution,    but    the    loss    by 

jettison  must  fall  on  the  owner  of  the  goods,  if  he  has 

agreed  to  that  mode  of  stowage,  or,  if  not,  on  the  sliip- 

owner.     The  shipowner  in  either  case  must  bear  his  own 

{d)  Bixou  y.  Itiiyal  E.rchan(/e  Slii'ii-  decision  was  given  by  the  Court  of 

ping  Co.,  Court  of  Appeal,  May  IS,  Appeal  in  Neioall  v.  Royal  Exchange 

1885  ;   confirmed  in  House  of  Lords  Shipping  Co.  (1885),  33  W.  E.  868. 
(1886),    12  App.   Cas.   11,   a  similar 


72 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Locomotive 
on  deck. 


The  editors' 
view  as  to 
jettison  of 
deck  cargo. 


loss  of  freight  on  the  goods  jettisoned.  And  these  rules 
cannot  be  modified  by  clauses  in  a  bill  of  lading,  or 
certainly  not  if  there  be  anything  ambiguous  about  such 
clauses. 

Cargo  Avhich  is  always  carried  on  deck,  because 
there  is  no  other  place  where  it  can  be  carried — e.g.^  a 
locomotive  carried  in  a  coasting  steamer — must,  it  is 
conceived,  so  long  as  it  is  fit  to  be  carried  at  all,  be 
treated  as  in  its  proper  place,  or  as  if  it  were  customary 
so  to  carry  it,  and  therefore  if  jettisoned  must  be  allowed 
as  general  average. 

[The  editors  have  reproduced  without  any  alteration 
the  learned  author's  discussion  of  the  question  when  the 
jettison  of  deck  goods  gives  rise  to  contribution.  They 
cannot,  however,  agree  with  his  conclusion  that  the  only 
case  (except  that  suggested  in  the  last  paragraph)  in 
which  there  is  contribution,  is  where  there  is  a  custom  to 
carry  the  goods  on  deck.  Johnson  v.  Chapmanic)  is  a  strong 
authority  to  the  contrary.  In  that  case  the  whole  cargo 
was  carried  under  a  charter-party  contract  which 
expressly  provided  for  a  full  cargo,  including  a  deck- 
load.  Part  of  the  deck  cargo  was  necessarily  jettisoned 
during  the  voyage. 

The  cargo-owner  claimed  for  a  contribution,  while 
the  shipowners  contended  that  the  jettison  was,  under  the 
circumstances  of  the  case,  only  a  particular  average  loss 
and  not  a  loss  entitling  him  to  a  contribution,  the  cargo 
jettisoned  being,  they  said,  practically  in  a  state  of  wreck. 
They  do  not  seem,  however,  to  have  disputed  the  right  to 
contribution,  on  the  ground  that  the  cargo  was  laden 
on  deck(/).     Willes,  J.,  delivering  the  considered  judg- 


(e)  (I860),  19  C.  B.  (X.  S.)  563;  (/)  See   Sir    George    Honyman's 

35  L.  J.  C.  P.  23.  arguBient    for    the   cargo-owner    as 


SB:CT.   IX.]  DECKLOAD  JETTISON.  ''^ 

ment  of  the  Court  of  Common  Pleas,  first  dealt  witli  the 
question  of  wreck  (^y),  and  tlien  continued: — 

"In  this  case  there  is  a  deck  cargo.  And  the  first  observation 
naturally  would  arise  upon  its  being  a  deck  cargo,  and  upon  the 
exception  with  regard  to  deck  cargoes,  but  that  is  taken  out  of' 
the  case  most  effectually  by  reference  to  the  charter-party.  This 
is  an  action  by  the  shipper  of  cargo  against  the  shipowner;  and 
the  charter-party  contemplates  a  deck  cargo.  It  is  not  suggested 
that  tliere'  is  any  statute  to  make  a  deck  cargo  illegal;  therefore 
it  seems  something-  more  than  custom  to  have  deck  cargoes.  I  think 
it  was  from  Quebec;  but  it  is  not  necessary  to  refer  to  any  custom 
affecting  the  voyage,  because,  according  .to  the  contract  between 
the  parties,  there  was  to  be  a  deck  carg-o.  Then,  immediately  you 
find  that  the  deck  cargo  is  Avithin  the  contemplation  of  the  parties, 
you  must  deal  Avitli  it  as  if  shipping  a  deck  cargo  was  lawful. 
When  you  have  established  that  it  is  a  deck  cargo,  lawfully  there 
by  the  contract  of  the  parties,  it  becomes  subject  to  the  rule  of 
general  average." 

The  question  in  Wright  v.  Marivood{h)  was  a 
different  one,  as  the  vessel  was  a  general  ship  carrying 
the  goods  of  various  parties;  and  the  Court  of  Appeal 
held,  as  we  have  seen,  that  there  was  no  right  of  con- 
tribution, even  from  the  shipowner,  by  agreement  with 
whom  the  goods  were  carried  on  deck.  But  the  right 
to  contribution  when  there  is  only  one  cargo-owner  who 
has  agreed  with  the  shipowner  for  the  carriage  of  a 
deck-cargo  seems  clearly  to  have  been  recognized  in 
the  judgment  of  the  Court  of  Appeal  delivered  by 
Bramwell,  L.  J.,  although  he  preferred  not  to  give  it 
the  name  of  general  average.  He  begins  by  pointing- 
out  that  it  is  all-important  to  note  tliat  in  Wright  v. 
Martvood  the  ship  was  not  chartered  to  the  claimant  (/). 


reported  iu  the  Laiv  Journal  report,  {<i)  See  infra,  \).  119. 

and  per  Bramwell,  L.  J.,  in   Wright  {h)  (1881),  7  Q.  B.  D.  62. 

V.  Marwood,  7  Q.  B.  I),  at  p.  69.  (/)  See  ante,  p.  65. 


74  SACRIFICES  OF  CARGO.  [CHAP.  II. 

Afterwards,  in  discussing  Johnson  v.  Chapman,  he 
savs : — 

'"That  was  uot  a  case  of  general  average.  The  plaintiffs  had 
chartered  the  defendant's  ship  (k),  loaded  the  whole  cargo,  part  of 
which  by  the  charter  was  to  be,  and  was,  deck  cargo,  and  were 
held  entitled  to  a  contribution  from  the  ship,  and  with  reason.  They 
were  not  seeking  it  from  other  cargo-owners,  but  from  the  ship- 
owner, who  shared  the  benefit  and  ought  in  reason  to  share  the 
risk  of  the  deck  cargo." 

Again,  after  quoting  the  passage  from  the  judgment  in 
Johnson  v.  Chapman,  which  we  have  ah'eady  set  out,  he 
remarks : — 

"  The  learned  judge  should  be  understood  as  speaking  in  rela- 
tion to  the  subject-matter.  It  was  not  a  claim  for  general  average, 
as  against  any  other  than  the  shipowner.  It  was  a  particular  claim 
against  him,  and  is  said  to  be  subject  to  the  '  rule  "  of  general 
average.  If  Mr.  Justice  Willes  had  said  that  it  could  have  been 
maintained  against  other  cargo-owners,  had  there  been  any,  it  would 
have  t)een  wholly  extra-judicial,  for  there  were  none.  But  he  did 
not  say  nor  mean  to  say  so.  For  he  says:  'The  deck  cargo  was 
within  the  contemplation  of  the  parties,'  which  would  not  be  true 
of  other  cargo-owners.  The  case,  then,  was  not  one  of  general 
average.  It  was  as  though  the  plaintiffs  were  owners  of  such  cargo, 
and  A.  owner  of  other  cargo,  and  A.  had  agreed  to  contribute  if 
deck  cargo  was  jettisoned." 

Finally,  in  considering  whether  the  plaintiff  was 
entitled  to  what  has  been  called  a  "general  contribu- 
tion"(/)  against  the  shipowners,  he  distinguishes  Jb^w^ow 
V.  Chairman  from  the  case  with  wdiich  he  was  dealing  as 
follows  :  — 

"  In  the  case  of  Johnson  v.   Chapman,  tlie  plaintiffs  and  the 
defendant  got  all  the  benefit  from  the  jettison;   not  so  here.     In 

(A-)  He  ought  to  have  said  : — "The      tiffs'    ship."     The   shipowners    were 
defendant  had  chartered  the  plain-      plaintiffs. 

(Z)  Antt,  ])p.  63,  64. 


SECT.  IX.]  DECKLOAD  JETTISON.  75 

that  case  all  subject  to  general  average  was  brought  into  the  account; 
here  it  would  not  be." 

In  Burton  v.  English  the  sole  question  for  determi- 
nation was  whether  the  words  "  at  merchant's  risk  " 
excluded  the  liability  to  contribute  for  the  jettison  of 
deck  cargo.  It  was  not  disputed  that  but  for  this  clause 
the  liability  would  have  arisen,  as  there  was  a  custom  to 
carry  a  deck  cargo  in  the  particular  trade.  Johnson  v. 
Chapman  was  not  cited,  and  even  if,  as  Mr.  Lowndes 
says  [m),  the  language  of  Cave,  J.,  shows  that  the 
Divisional  Court  would  have  negatived  an  attempt  to 
rely  on  it,  which  is  by  no  means  clear,  such  an  opinion 
could  have  no  weight  against  the  considered  judgment 
of  the  court  in  Johnson  v.  Chapman,  supported,  as  we 
have  shown  it  to  be,  by  the  opinion  of  the  Court  of 
Appeal  in  Wright  v.  Marwood.  It  is,  therefore,  submitted 
that  the  legal  authorities  establish  the  rule  that  where 
the  whole  cargo  belongs  to  the  same  owner,  there  is  a 
right  of  contribution  for  jettison  of  cargo  carried  on 
deck  by  express  agreement  between  him  and  the  ship- 
owner, unless  the  right  be  clearly  negatived  by  the 
contract. 

In  Strang  v.  Scott  [n),  shortly  after  the  last  edition 
of  this  work  appeared.  Lord  Watson,  in  delivering  the 
judgment  of  the  Privy  Council,  considered  the  excep- 
tions to  the  rule  of  contribution  for  general  average. 
He  said  that  the  exception  in  the  case  of  deck  cargo 
does  not  apply  either  "(1)  in  those  cases  where,  according 
to  the  established  custom  of  navigation,  such  cargoes  are 
permitted,  or  (2)  in  any  case  where  the  other  owners 
of  cargo  have  consented  that  the  goods  jettisoned  should 
be  carried  on  the  deck  of  the  ship"(o).     He  thus  accepts 

(to)  Antt,  p.  05,  note  («).  (o)  With  rufureuce  to  this  dictum 

(«)  (1889),  14  App.  Cas.  (501,  G09.        it  is  submitted  in  the  latest  editions 


76  SACRIFICES  OF  CARGO.  [CHAP.  II. 

the  principle  that  there  is  a  right  to  contribution  when 
all  the  parties  to  the  adventure  have  agreed  to  the 
carriage  of  a  deck  cargo.  If  this  be  the  correct  prin- 
ciple, the  case  where  there  are  only  two  parties  who 
have  expressly  contracted  for  a  deck  cargo  is  an 
a  fortiori  one. 

As  a  matter  of  practice,  jettison  of  deck  cargo  is 
not  treated  by  adjusters  as  general  average  in  this 
country,  unless  the  carriage  of  a  deck  cargo  on  the 
particular  voyage  is  sanctioned  by  custom. 

The  rule  (No.  9)  of  the  Association  of  Average 
Adjusters,  dealing  with  this  point,  is  as  follows : — 

"  The  jettison  of  a  deckload  carried  according-  to  the  usage  of 
trade  and  not  in  violation  of  the  contracts  of  affreightment  is  general 
average . 

"  There  is  an  exception  to  this  rule  in  the  case  of  cargoes  of 
cotton,  tallow,  acids  and  some  other  goods." 

The  practice,  therefore,  is  in  accordance  with  the 
view  expressed  by  Mr.  Lowndes  on  this  subject. 

The  reason  for  the  rule  which  disallows  contribution 
for  the  jettison  of  deck  cargo  can  hardly  apply  to  an 
inland  voyage  by  river  or  canal ;  for  on  such  a  voyage 
it  is  difficult  to  suppose  that  the  deck  is  an  improper 
place  for  cargo  ( /?).  Therefore,  even  without  evidence 
of  custom,  it  is  apprehended  that  in  the  unlikely 
event  of  a  jettison  of  deck  cargo  on  such  a  voyage 
for  the  general  safety  there  will  l^e  a  right  to  con- 
tribution.] 

of  Arnould   on    Marine    Insurance,  themselves  the  liability  to  contribute 

§  921,  that  the  other  owners  "must  in  case  of  jettison." 

also  have  consented  under  such  cu--  (^)  See  the  judgment  of  Walton, 

cumstances  as  to  j ustify  the  inference  J. ,  in  ApoUinaris  Co.  v.  Nurd  Deutsche 

that    they    intended    to    take  upon  Ins.  Co.,  [1904]  1  K.  B.  252. 


SECT.  X.J  CA^iGO  IN  DECKHOUSES. 


/  I 


Carcjo  in  Deckhouses. 
§  10.  It  has  been  questioned  whether  cargo  in  the  Cargo  m 

deckhouses, 

poop  or  forecastle,  or  in  deckhouses,  or  other  spaces  .v-c. 
covered  in  above  the  maindeck  for  the  purpose  of  holding 
cargo,  can  be  treated  as  below  deck.  If  there  is  a 
difficulty  about  this,  it  arises  from  the  manner  in  which 
ships  are  now  measured  for  tonnage.  Such  spaces  may 
be  built  in  with  the  frame  of  the  ship,  and  measured  in 
with  her  tonnage,  which,  in  theory,  represents  her 
capacity  for  carrying  cargo  ;  and,  when  due  allowance 
has  been  made  for  crew  space  and  the  like,  it  has  not 
unreasonably  been  supposed  that  cargo  in  the  remainder 
of  a  ship's  tonnage  space  should  be  treated  as  in  the  proper 
place  for  cargo.  Lord  Esher,  M.  R.,  however,  expressed 
himself  very  energetically  in  opposition  to  this  view, 
declaring  that  anybody  who  knows  what  a  ship  is  must 
know  that  that  part  of  a  ship  in  which  goods  are  ordinarily 
loaded  is  that  part  of  the  hold  of  the  ship  "  which  comes 
up  to  the  deck  and  not  above  the  deck."  His  lordship 
appeared  to  be  willing  to  receive  evidence  of  custom  on 
the  point,  so  that  perhaps  the  question  maybe  regarded  as 
still  an  open  one  {([).  It  is  rather  a  nautical  tlian  a  legal 
question.  Amongst  adjusters,  the  practice,  up  to  the 
time  of  Dixon  v.  Rojjal  Exchange^  used  to  be,  to  treat  a 
jettison  from  structures  built  in  with  the  ship's  frame 
and  measured  in  with  her  tonnage  as  being  on  the  same 
footing  with  a  jettison  from  below  the  hatches. 

Jettison  from  fault  of  Cargo. 
§  11.  Supposing  that  the  danger  which  has  neces-  Jettison 

.,,..  i  .  (,  I  T  ,,    resultiui;  from 

sitated  the  jettison  lias  arisen  ±rom  what  may  be  styled  fault  of  cargo. 

((/)  Dixon  V.  Royal  Exchaufje  Shippimj  Co.,  Court  of  Appeal,  May  18,  1885. 


78 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Old  theory  as 
to  ' '  cause  of 
danger.'" 


Heated  hemp. 


State  of 
wreck. 


Johnson  v. 
Chapman. 

Above  theory 
not  appUcabie 
to  cargo 
displaced  or 
damaged  by 
accidents  of 
na'vi'ration. 


the  fault  of  the  cargo,  how  does  this  circumstance  aifect 
the  right  to  contribution  ? 

A  theory  was  formerly  set  up,  and  for  some  time 
was  acted  on  in  the  practice  of  average  adjusters,  that 
there  can  be  no  contribution  for  the  sacrifice  of  an 
article  which  was  itself  the  cause  of  the  danger  which 
rendered  its  sacrifice  necessary.  If,  for  example,  a  cargo, 
such  as  hemp,  were  to  heat  from  being  shipped  in  a 
damp  state,  and  were  jettisoned  from  fear  of  fire,  there 
should,  it  was  contended,  be  no  contribution,  since  the 
loss  would  really  be  caused  by  the  vicious  quality  of  the 
article  itself  (r).  Or,  again,  if  the  cargo  were  in  a  state 
of  wreck,  i.e.  in  a  position,  owing  to  some  accident  to 
the  cargo  itself,  inconsistent  with  the  proper  naviga- 
tion of  the  ship,  and  were  jettisoned  on  that  account, 
the  same  rule  should  apply,  because  the  cargo  was  the 
cause  of  the  danger  [s). 

This  tlieory  has  been  rendered  untenable  by 
decisions  in  our  courts. 

In  Johnson  v.  Chapman  (t),  a  ship  carrying  a  deck- 
load  of  deals  met  with  extremely  bad  weather  on  three 
occasions,  of  wdiicli  it  may  suffice  to  mention  two.  The 
first  time,  a  heavy  sea  knocked  the  deckload  adrift,  and 
threw  a  quantity  of  the  deals  against  the  pumps,  so  as 
to  prevent  their  being  worked  ;  presently,  however,  the 
crew  succeeded  in  getting  this  deckload  to  its  place  and 
securing  it  again.  The  second  time,  seas  flooded  the 
deck,  and   the    deckload    was    again  broken  adrift  and 


(r)  In  Boyd  v.  Buhois  (ISIl),  3 
Camp.  133,  where  tlie  question  was 
of  liability  under  a  policy  of  in- 
surance, Lord  EUenborougli  said: 
' '  If  the  hemp  was  put  on  board  in  a 
state  liable  to  effervesce,  and  it  did 
effervesce,  and  generate  the  fire  that 
consumed  it,  upon  the  common  prin- 


ciples of  insurance  law  the  assured 
cannot  recover  for  a  loss  which  he 
himself  has  occasioned." 

(s)  Baily,  General  Average,  jjp. 
56-8. 

(<)  Johnson,  v.  Chapjmai  (1865), 
19  C.  B.  (N.  S.)  563. 


SECT.  XI.]  JETTISON  FROM  FAULT  OF  CARGO. 

knocked  against  the  pumps  on  both  sides ;  whereupon, 
to  prevent  damage  to  the  pumps  and  bulwarks,  and  to 
enable  them  to  work  the  pumps,  and  for  tlie  safety  of 
ship  and  cargo,  the  captain  threw  overboard  a  quantity 
of  the  deals.  A  claim  was  made  by  the  owner  of 
the  deckload  against  the  shipowner,  for  contribution 
towards  the  jettison.  This  claim  was  resisted,  on  the 
ground  that  the  deals,  when  jettisoned,  were  in  a  state 
of  wreck  :.  and  it  was  admitted,  in  the  agreed  case,  that  Admitted 

_  ^  ^  practice  of 

hitherto  it  had  been  the  practice  of  average  adjusters  iidjusters. 
not  to  allow  as  general  average  the  jettison  of  deals  in  a 
state  of  wreck.  The  court,  however,  decided  that  the 
jettison  in  this  case  was  properly  a  general  average. 
"The  cargo,"  it  was  pointed  out,  "had  been  secured 
once  before  when  adrift,  so  that  it  clearly  was  not  in  a 
state  of  wreck,  in  the  sense  of  having  become  lost 
property,  which  they  could  not  recover  or  make  use  of 
if  they  recovered  it.  .  .  .  The  danger  was  caused 
to  all,  both  ship  and  cargo  and  crew,  by  the  storm. 
The  special  danger  caused  to  and  by  the 
timber  was  only  a  circumstance  of  the  common  peril  to 
which  the  whole  adventure  was  exposed  "  [u). 

Willes,  J.,  who  delivered  the  judgment  of  the  court,  ^^""'''«.  J- 
intimated  that  a  distinction  should  be  drawn,  in  the  case 
of  heated  hemp,  between   heating   by   a  peril   insured 
against,  and  heating  by  reason  of  an  inherent  defect  of 
the  cargo.     As  to  this  he  sa3^s : 

"In  order  to  make  jettison  the  subject  of  general  average  con- 
tribution, there  must  be  common  danger.  It  must  be  a  maritime 
peril,  and  it  must  be  common  to  the  Avhole  adventure;  which  would 
exclude  some  of  the  cases  which  Mr.  Cohen  very  ingeniously  put, 
of  a  subject-matter  that  had  within  itself  the  elements  of  destruction 
which  developed  themselves  during  the    storm;    as,  for    instance, 

{u)    Johnson  v.  r/iapman  (1865),  19  C.  B.  (N.  S.)  563,  at  p.  583. 


79 


80  SACRIFICES  OF  CARGO.  [CHAP.  II. 

cotton  which  was  brought  on  board  in  a  damp  state  bursting  out 
into  a  flame,  and  being-  thrown  overboard.  You  cannot  say  there 
is  a  common  danger,  but  a  peculiar  danger  from  the  fault  of  the 
person  putting  it  on  board"  (x). 

Piriev.  In  another  case,  where  a  cargo   of  coal  took  fire 

Middle  Bock  .  t-,,i,  i  ^         •'  J 

Co.  .  owmg,  as  was  admitted,  to  spontaneous  combustion,  ana 

Zms!'j.^'^'    by  reason  of  water  thrown  upon  the  coal  to  extinguish 
Limitation  of  ^hc  fire  thcrc  ensued  a  loss  of  freight  to  the  shipowner, 

above  dictum 

to  case  where  the  Questioii  having  been  raised  whether  this  loss  should 

claimant  to  -^  ^  t  p 

blame.  be  treated    as   general    average,   the    above    dictum    oi 

Willes,  J.,  was  cited  as  an  authority  against  the  allow- 
ance;  but  Watkin  Williams,  J.,  said:  "In  that  case 
cotton  had  been  shipped  in  a  damp  state,  and  in  conse- 
quence, and  without  external  accident,  burst  into  a 
flame,  and  was  on  that  account  thrown  overboard,  and 
it  was  held  that  the  merchant  had  no  claim  to  contri- 
bution on  account  of  the  jettison.  The  application  of 
the  principle  of  that  case  to  the  present  involves  a 
complete  fallacy.  All  that  that  case  decides  is,  that  if 
the  owner  of  the  interest  sacrificed  was  himself  in  fault, 
and  was  the  cause  of  the  danger  which  necessitated  the 
sacrifice,  he  must  bear  the  loss  himself,  and  could  not 
throw  it  as  a  general  average  on  the  whole  adventure ; 
or,  as  it  has  been  expressed  in  one  of  the  decisions,  he 
cannot  take  advantage  of  his  own  wrong  "  (//). 

This  decision  establishes  that  where  the  danger,  to 
avert  which  the  sacrifice  was  made,  has  resulted  from 
the  fault  or  vice  propre  of  the  cargo,  an  innocent  party 
whose  property  has  been  sacrificed  may  be  entitled  to 
contribution    as    general    average.      The    above    theory 

{x)  19  C.  B.  N.  S.  at  p.  581.  allowance   for  the  loss  of  the  coals 

[y)  Piriev.  Middle  Dock  Co.  (1881),  jettisoned  was    claimed.      See   post, 

4  Asp.  Mar.  Law  Ca.  388,  at  p.  391.  p.  88  et  seij. 

It  may  be  noted  that  in  this  case  no 


SECT.  XI. 


JETTISON  FROM  FAULT  OF  CARGO. 


81 


concerning  the  ''cause  of  clanger"  may  now,  therefore, 
apparently  be  narrowed  to  tliis,  that  one  who  improperly 
nh'rps  cargo  in  a  condition  not  fit  for  carriage  camiot 
recover  as  general  average  a  loss  which  is  reallv  caused 
by,  or  by  the  discovery  of,  its  improper  condition. 

[This  conclusion  is  confirmed  by  the  recent  case  of 
Greenshtelds  v.  Stephens.  In  that  case  the  claim  was  for 
a  contribution  in  respect  of  damage  done,  by  pouring 
water  into  the  hold,  to  a  cargo  of  coal,  some  of  which 
had  taken  fire  through  spontaneous  combustion.  The 
Court  of  A2jpeal  held  that  the  fact  that  the  peril  was 
brought  about  by  the  inherent  vice  of  the  cargo  did  not 
prevent  the  cargo-owner  from  recovering,  unless  his 
conduct  in  shipping  the  cargo  was  wrongful  or  negli- 
gent; and  this  judgment  was  affirmed  by  the  House  of 
Lords  (£•).] 


Damage  incidental  to  Jettison. 

§  12.  Damage  which  is  incidental  to  a  jettison,  so  Damage 
that  the  jettison  cannot  be  made  without  incurring  it,  jettison: 
must  be  regarded  as  part  of  the  loss  by  jettison,  and  in- 
cluded in   the   general   average;   e.g.^  holes  cut  in   the  cutting  holes 
deck,  or  bulkheads  or  bulwarks  stove  in,  in  order  to  get  like. 


(2)  (rreeimhiclds  v.  Stephens,  [1908] 
1  K.  B.  51 ;  [1908]  A.  C.  431.  The 
claim  was  only  f(jr  the  damage  done 
to  the  coal  which  had  not  been  on 
fire,  and  in  the  Court  of  Appeal, 
Kennedy,  L.  J.,  seems  to  have 
guarded  himself  against  laying  down 
a  rule  applicable  to  that  part  of  the 
cargo  which  had  been  on  fire  through 
spontaneous  combustion.  No  such 
limitation  is  suggested  in  any  of  the 
other  judgments.  Apart  from  any 
question  of  inherent  vice,  there  is  a 
practice  not  to  allow  the  damage 
done  to  bales  or  packages  which  have 

L. 


been  on  fire.     (See  infra,  p.  86.) 

In  The  William  J.  Quillun  (1910), 
175  Fed.  E.  207,  the  district  judge 
distinguished  Greenshields  v.  Stephens 
on  the  ground  that  the  cargo  might 
have  been  prepared  so  as  to  be  quite 
safe  from  the  risk  of  spontaneous 
combustion,  whereas  in  Greenshields 
V.  Stephens  the  shipowner  knew  that 
the  cargo  was  necessarily  liable  to 
spontaneous  combustion ;  but  it  does 
not  appear  from  the  report  that  the 
shipper  knew  that  the  cargo  was 
improperly  prepared,  or  that  his 
conduct  in  shipping  it  was  negligent. 

G 


82 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Damage  to 
goods  by 
opening 
hatches. 


of  stowage. 


at  the  cargo  or  throw  it  over.  So  if  goods  are  damaged 
b}^  reason  of  the  opening  of  the  liatches  to  throw  cargo 
overboard,  from  seas  which  break  over  the  deck,  all  such 
damage  is  properly  and  in  practice  made  the  subject  of 
general  average,  being  the  necessary  consequence  of  the 
measure  for  the  common  safety.  This  rule  is  as  old  as 
the  Roman  law,  and  may  now  be  regarded  as  universally 
Derangement  accepted  («).  The  Same  principle  would  apply  to  damage 
done  by  chafing  or  breakage  of  packages,  or  otherwise 
from  the  derangement. of  stowage  consequent  on  a  jet- 
tison ;  e.g.  if  the  cargo  consisted  of  barrels,  well  secured 
in  their  places  while  the  hold  was  full,  but  which  could 
not  be  prevented  from  shifting  after  a  portion  of  the 
cargo  had  been  thrown  out ;  [or  if  goods  were  lost  or 
damaged  in  consequence  of  having  been  brought  on  deck 
in  order  to  get  access  to  less  valuable  goods  for  the 
purpose  of  jettison  (Z*)]. 


Damage  in"] 

quenching 

fire. 


Former 
practice  of 
adjusters. 


Damage  done  in  quenching  Fire. 

§  13.  If  a  shij)  is  on  fire,  and  the  fire  is  quenched 
by  pouring  water  into  the  hold,  or  by  scuttling  the  ship 
in  shallow  water,  or  by  filling  the  hold  with  steam,  is  the 
damage  done  by  this  means  to  the  cargo  properly  the 
subject  of  general  average  contribution?  It  certainly 
comes  within  the  definition.  It  is  a  voluntary  sacrifice 
of  a  part  for  the  preservation  of  the  remainder. 

For  a  considerable  number  of  years,  however,  it  had 
been  the  practice  of  English  average  adjusters  not  so  to 
treat  it.      The  origin  of  this  practice,  and  the  reasons  on 


(a)  Digest  ad  leg.  Eliod.  See  Ap- 
pendix A.  Damage  done  to  cargo 
by  water  going  down  a  hole  made  in 
the  deck  from  cutting  away  a  mast 
has  heen  treated   in   the   American 


courts  on  the  same  principle  as 
general  average.  [Maggrath  v.  Church 
(1S03),  1  Caines,  196  ;  Phillips,  § 
12S6.) 

(b)  Benecke,  p.  213. 


SECT.  Xlir.J       DAMAGE  DONE  IN  QUENCHING  P^IKE.  88 

which  it  was  founded,  are  not  now  to  be  traced  with  any 
certainty.     It  is  not  very  ancient;  in  1835,  Stevens  dis- 
cusses the  question  as  one  not  yet  settled,  and  gives  it  as 
his  opinion  that  such  damage  should  be  treated  as  general 
average  (c).     He  suggests  a  doubt,  however,  in  saying  : — 
"When  claimed  as  a  general  average,  it  is  objected  to 
on  the  ground  that  the  damage  done  to  the  goods  is 
secondary  and  accidental,  and  not  primary  and  intentional 
(as  in  cutting  away  a  mast,  &c.),  which  it  ought  to  be  to 
establish  such  a  claim  "(^).     This  perhaps  means  that  the 
water  is  poured  in  for  the  purpose  of  quenching  the  fire 
and  not  of  wetting  the  goods,  and  is  not  aimed  at  an}^ 
particular  package.     On  whatever  ground  it  may  have 
rested,  however,  we  find  that  the  practice  of  excluding 
such  claims  from  contribution  was  completely  established 
before  the  year   1856.      Daily  speaks  of  it  as  a  settled 
rule.     "In  defence  of  this  practice,"  he  says,  "no  valid 
reason  can  be  urged.      It  is  based  on  an  erroneous  idea 
that  a  general  average  cannot  arise  when  the  degree  of 
danger  is  so  great  that  it  amounts  to  a  moral  certainty 
of  total  loss,  and  on  a  fanciful  distinction  between  the 
degree  of  danger  existing  in  cases  of  fire  and  the  degree 
existing  when  a  vessel  is  on  her  beam  ends,  or  on  the 
point  of  foundering,— a  distinction  which  the  ingenuity 
•of  argument  may  draw,  but  which  will  not  bear  the  test 
of  common  sense  "  (e). 

Until  the  year  1873,  then,  the  practice  of  adjusters 
in  case  of  fire  was  this :  If  a  hole  was  cut  in  a  ship's 
deck,  in  order  to  pour  water  down  it  to  flood  the  caro-o 
and  quench  the  fire,  the  cost  of  repairing  the  deck  was 
replaced  in  general  average,  but  the  damage  done  to  the 

(c)  And   see,    to   the   same  effect,  {d)  Stevens  on  Average,  5th  edit. 

JBenecke,  p.  243.  42. 

{(')  Baily,  (jieneral  Average,  p.  S'>. 

G  2 


84 


SACRIFICES  OF  CARGO. 


[■ 


CHAP.  II. 


Stewart  v. 
West  India 
and  Tacific 
S.  S.  Co. 

The  above 
practire 
theoretically 
condemned. 


goods  by  the  water  poured  down  was  not  replaced.  If  a 
hole  Avas  cut  in  a  ship's  side  in  order  to  scuttle  the  ship 
for  the  same  purpose,  the  damage  done  to  the  ship  by 
cutting  the  hole  was  allowed  as  general  average,  but 
the  damage  done  to  the  goods  by  the  water  that  flowed 
in  through  the  hole  was  not  allowed.  This  practice  held 
good  only  until  it  was  challenged  in  a  court  of  law. 

A  parcel  of  180  serons  of  bark  had  been  shipped  at 
Santa  Martha  on  board  the  steamer  Venezuelan,  bound 
for  London,  under  a  bill  of  lading  containing  the  clause, 
"  average,  if  any,  to  be  adjusted  according  to  British 
custom."  While  the  Venezuelan  was  at  Santa  Martha, 
loaded  and  about  to  sail,  a  fire  broke  out  in  her  forehold, 
which  was  only  extinguished  by  pouring  in  water  down 
the  hatchways,  and  through  holes  cut  in  the  deck,  and 
by  cutting  a  hole  in  the  side  of  the  ship  and  filling  her 
fore-compartment  with  water.  By  the  water  thus  poured 
or  let  into  the  ship,  152  of  the  180  serons  of  bark  were 
destroyed.  The  owner  of  it  claimed  contribution  from 
the  shipowner,  as  general  average.  The  question  was 
tried  on  an  agreed  case,  in  which  it  was  admitted  that  if 
these  measures  had  not  been  taken,  the  remaining  cargo 
would  in  all  probability  have  been  destroyed,  and  the 
ship  most  seriously  damaged,  if  not  rendered  a  total 
wreck.  It  was  admitted  also  that  "  it  has  been  the 
practice  of  British  average  adjusters,  in  adjusting  losses^ 
to  treat  a  loss  occasioned  by  water  in  the  manner  above 
described  as  not  a  general  average  loss." 

The  judgment  of  the  Queen's  Bench  Division  was 
delivered  by  Quain,  J.,  who  said : — 

How  the  case  "  The  first  question  argued  before  us  was,  whether  the  loss  in 

prbll!fple^  ""^     question  was  a  loss  which  properly  formed  the  subject  of  a  general 

average  contribution,  according  to  the  law  of  England.     ...     On 

these  facts  we  are  clearly  of  opinion  that  the  loss  was,  according- 


Quain,  J. 


SECT.  XIII.]       DAMAGE   DONE  IN  QUENCHING  FIRE. 


85 


to  the  general  law,  properly  the  subject  of  a  general  average  con- 
tribution. It  was  a  voluntary  and  intentional  sacrifice  of  the  bark, 
made  under  the  pressure  of  imminent  danger,  and  for  the  benefit, 
and  with  a  view  to  secure  the  safety,  of  the  whole  adventure  then 
at  risk.  No  case  has  been  cited  in  which  the  exact  point  to  be 
decided  has  arisen  in  our  courts;  but  we  have  been  referred  to  an 
American  case  in  which  the  question  was  considered  and  decided. 
That  case  is  Nimick  v.  Holmes  (f),  decided  in  the  Supreme  Court  American 
of  Pennsjdvania.  There  Lowrie,  J.,  in  delivering  the  judgment  of  ^^' 
the  court,  says:  'Guided  by  the  light  of  the  rule  and  its  instances, 
we  feel  constrained  to  say  that  when  a  vessel  or  its  cargo  takes 
fire  without  the  fault  of  the  crew,  the  damage  done  by  the  applica- 
tion of  water  or  steam  in  extinguishing  the  fire,  and  by  tearing 
u]D  part  of  the  vessel  in  order  to  get  at  it,  is  general  average.  The 
danger  is  a  common  one,  and  the  cost  of  the  remedy  must  be  common. 
It  makes  no  difference  how  the  water  is  applied,  by  the  aid  of  fire- 
engines  on  the  land,  or  in  the  form  of  steam,  or  by  scuttling  the 
vessel.  ...  It  was  a  sacrifice  for  the  common  safety,  for  it 
was  intentionally  injuring  or  destroying  all  that  part  of  the  cargo 
that  could  be  thus  affected  by  water,  in  order  to  save  the  rest.' 
.  .  .  We  quite  agree  with  this  conclusion,  and  if  the  present  case 
depended  wholly  on  the  common  law  applicable  to  general  average 
losses,  we  think  the  plaintiffs  would  be  entitled  to  recover.     .     .     . 

"  The  question  in  this  case,  however,  is  whether  the  parties  have  Practice  here 
not,  by  the  words  used  in  the  bill  of  lading,  made  this  j)ractice  [of  ^ntracr"*^  ° 
British  average  adjusters]  a  part  of  their  contract,  for  if  so  they  are 
bound  by  it,  though  the  practice  may  be,  according  to  the  best 
opinion,  vicious  and  unreasonable.  .  .  .  As  it  appears  on  the  face 
of  the  case,  and  also  from  the  authorities  above  cited,  that  a  practice 
prevails  amongst  British  average  adjusters  not  to  allow  a  loss  like 
the  present  as  a  general  average  loss,  we  can  only  construe  the 
expression,  British  custom,  as  intended  to  apply  to  that  practice,  as 
the  mode  of  adjusting  the  average  by  which  the  parties  have  agreed 
to  be  bound.  It  follows,  therefore,  that,  as  the  parties  have  agreed 
to  make  this  custom  a  part  of  their  contract,  the  case  must  be  de- 
cided in  accordance  with  the  custom,  and  the  result  is  that  our 
judgment  must  be  for  the  defendants.  It  is  to  be  hoped,  however, 
that  in  future  there  will  be  no  difference  between  law  and  custom 
on  this  point,  and  that  average  adjusters  will  act  on  the  law  as  now 

(/)  (1855),  25  Pennsylv.  Rep.  366;  cited  4  Asp.  Mar.  Law  Cas.  p.  392. 


86 


SACRIFICES  OF  CARGO. 


|_CHAP.  II. 


Change  of 
practice. 


declared,  and  that  bills  of  lading-  will  also  be  framed  in  accordance 
with  it"  (g). 

The  effect  of  this  decision  was  such  as  might  have 
been  expected.  The  practice  at  once  disappeared.  The 
Association  of  Average  Adjusters,  at  their  next  annual 
meeting,  passed  a  resolution,  ' '  That  damage  done  by 
water  poured  down  a  ship's  hold  to  extinguish  a  fire  be 
treated  as  general  average."  This  was  next  year  (in 
1874)  modified  by  another,  viz.,  ''  That  goods  in  a  ship 
which  is  on  fire,  or  the  cargo  of  which  is  on  fire,  affected 
by  water  voluntaril}^  used  to  extinguish  such  fire,  shall 
not  be  the  subject  of  general  average  if  the  packages  so 
affected  be  themselves  on  fire  at  the  time  the  water  was 
thrown  upon  them  "  (h).  And  these  two  resolutions  have 
ever  since  formed  the  basis  of  our  practice. 
Stewart  Y.  Stetvort  V.    West  India    Co.   was  carried  to  the  Ex- 

West  India  Co. 

in  Exchequer  chequer  Chamber,  where,  while  the  result  of  the   iude-- 

Chamber.  »  '  '  J        & 

ment  as  based  on  the  practice  w^as  affirmed,  some  doubt 


{g)  Stewart  v.  West  India  and 
Pacific  S.S.  Co.  (1873),  L.  R.  8  Q.  B. 
88. 

(A)'  This  rule  is  consistent  with  an 
old  rule  of  practice,  which  lays  it 
down  that  if  a  bale  or  package  is 
thrown  overboard  because  it  is  on 
fire,  the  owner  of  it  is  entitled  to  no 
compensation. 

"If  water  be  thrown  down  the 
hatches  to  stop  the  progress  of  an 
accidental  fire  in  the  hold  .  .  .  this 
must  be  conceived  to  be  done  with 
the  double  intention  of  saving  the 
articles  which  have  already  caught 
fire  from  utter  destruction,  and  of 
extricating  the  vessel  and  rest  of  the 
caigo  from  imminent  danger.  The 
efl'ect  of  the  water  upon  the  former 
goods  is  therefore  particular  average  : 
it  is  not  an  injury,  but  a  real  advan- 
tage done  to  them."     (See  this  point 


discussed,  infra,  p.  93.)  "But  the 
damage  done  by  the  water  to  other 
goods  is,  I  conceive,  of  the  nature  of 
a  general  average,  upon  the  same 
principle  on  which  the  occasional 
damage  done  to  goods  during  a 
jettison  is  considered  as  such." 
(Benecke,  Ins.  p.  243.) 

How,  if  a  package  which  is  on  fire 
be  thrown  overboard?  This  cannot 
be  said  to  be  done  for  the  benefit  of 
the  bale  itself.  Must  we  inquire 
whether  it  was  possible  to  save  it  ? 
It  might  have  been  possible,  yet  not 
reasonably  jiracticable,  having  in 
view  the  danger  its  presence  on 
shipboard  might,  under  the  circum- 
stances, expose  the  ship  and  cargo  to. 
This  question  was  started,  arguendo, 
in  Shepherd  v.  Kottgen  (1877),  2 
C.  P.  D.  585,  at  p.  586. 


SECT.  XIII. J       DAMAGK  DONE  IN  QUENCHING  FIRE. 


87 


was  thrown  on  the  principle  laid  down  by  the  court. 
"If  it  were  necessary  in  this  case,"  said  Brett,  J.,  "to 
determine  whether  the  destruction  of  merchandize  by 
water  thrown  upon  it  in  the  course  of  throwing  water  to 
extinguish  a  fire  which  is  burning  other  merchandize 
in  the  same  ship  is  the  subject  of  general  average,  we 
should  desire  further  time  to  consider  a  subject  which  is 
no  doubt  of  great  importance,  and  upon  which  we  know 
of  no  direct  authority  in  the  law  of  this  country  "  («'). 

In  the  following  year  a  case  was  tried  at  Nisi  Prius,  Achard  v. 
before  Cockburn,  C.  J.,  to  determine  whether  there  ex- 
isted a  custom  at  Lloyd's  excluding  from  general  average 
damage  to  cargo  by  scuttling  (or  voluntary  stranding)  to 
put  out  a  fire.  "It  is  quite  clear,"  said  his  lordship,  Effect  of 
"that  this  [alleged]  custom  is  in  opposition  to,  and  in 
derogation  of,  the  law  of  the  land  relating  to  insurance, 
and  to  the  matter  of  average  as  between  the  shipowner 
and  the  owner  of  the  goods.  It  would  be  general  average 
according  to  the  law  of  the  land  but  for  this  custom,  and 
therefore  the  custom  militates  against,  and  derogates 
from,  the  law  of  the  land  ;  and  when  a  person  sets  up  a 
custom  of  that  sort  in  derogation  of  the  law,  he  is  bound 
to  prove  it,  and  to  prove  it  fully  to  the  satisfaction  of 
the  jury."  The  jury  found  that  the  custom  was  not 
made  out  (/*:). 

In  Schmidt  v.  Roiml  Mail  Co.  (I),  and  in  Aspinwall  v.  Schmidt  v. 

'^  ^    ^'  ^  Royal  Mail 


Co. 


[i)  Stewart  v.  West  India  and 
Pacific  S.S.  Co.  (1873),  L.  E.  8  Q.  B. 
362. 

{k)  Achard  v.  Ring  (1874),  31  L.  T. 
(N.  S.)  647. 

(/)  (1876),  45  L.  J.  Q.  B.  646. 
In  this  case  the  shipowner  set  up  the 
defence  that  by  the  bill  of  lading  he 
was  exempted  from  liability  for  loss 
by    fire ;    and,    moreover,    that    by 


statute  17  &,  18  Vict.  c.  104,  s.  o03 
[see  now  the  Merchant  Shipping-  Act, 
1894,  s.  502],  "  No  owner  of  any  sea- 
going ship  .  .  .  shall  be  liable  to 
make  good  any  loss  or  damage  that 
may  happen  without  his  fault  or 
privity  ...  of  or  to  auj^  goods,  mer- 
chandize, or  other  things  whatever, 
taken  in  or  put  on  board  any  such 
ship  by  reason  of  any  fire  hajDpening 


88 


SACRIFICES  OF  CARGO. 


["CIIAP.  II. 


Dock  Co. 


Merchant  Shipping  Co.  (m),  it  was  decided  iu  the  Queen's 
Bench  Division  that  damage  by  water  poured  into  a 
cargo  to  extinguish  a  fire  is  the  subject  of  general 
average.  The  same  conclusion  was  come  to  by  AVatkin 
Piriev. Middle  Williams,  J.,  in  Pirie  v.  Middle  Dock  Co.,  in  a  very 
learned  and  elaborate  judgment.  A  fire  broke  out  on 
board  the  ship  Attiln,  bound  for  Singapore  with  a  cargo 
of  coals,  owing,  as  was  admitted,  to  the  spontaneous 
combustion  of  the  coal.  Some  fifty  tons  of  coal  was 
tlirown  overboard,  water  was  poured  into  the  cargo 
continuously  for  three  days,  and  the  ship  was  taken 
into  Batavia  for  safety,  where  tlie  fire  was  quenched  by 
pouring  in  more  water  while  the  cargo  was  taken  out. 
Owing  to  the  damaged  state  of  the  coal  from  the  sea 
water,  it  was  found  necessary  to  sell  the  whole  of  it  at 
Batavia.  The  result  was,  that  the  shipowner  lost  his 
freight,  while  the  owner  of  the  coals,  receiving  the 
proceeds  freiglit  free,  suffered  no  loss,  but  on  the 
contrary  made  a  profit  by  tlie  mishap.  The  shipowner 
thereupon  claimed  from  him,  as  general  average,  con- 
tribution towards  this  loss  of  freight,  occasioned  by  the 
means  taken  to  extinguish  the  fire.  The  owner  of  the 
coals  disputed  his  liability.  On  his  behalf  it  was  argued 
that  the  pouring  in  of  the  w;ater  was  not  a  voluntary 
sacrifice,  but  was  done  to  preserve  as  much  of  the  coals 
as  could  be  saved  ;  that  the  cargo  was  practically  lost 


on  board."  But  his  exemption  in 
this  matter,  it  was  pointed  out,  cor- 
resi)onds  with,  his  ordinary  exemption 
from  "the  accidents  of  navigation," 
and  does  not  touch  his  liability  to 
contribute  towards  a  generjil  average. 
The  judgment  was  given  hy  Black- 
burn and  Lu.sh,  J  J.  The  same 
defence  was  set  up  in  GreenshieJds  v. 
Stephens,  [1908]  A.  C.  431,  and  was 


held  by  the  House  of  Lords  to  be 
untenable.  It  has  also  been  held  in 
the  United  States  Courts  that  the 
statutory  exemption  of  a  shipowner 
in  respect  of  daniage  by  fire  does  not 
apply  to  cases  of  general  average. 
{T/ie  MoanoJce  {\S93),  59  Fed.  R.  161.) 
(m)  Not  reported ;  referred  to  in 
Schmidt  r.  Boyal  Mail  (Jo.  (1876),  45 
L.  J.  Q.  B.  646. 


SECT.  XIII. J       DAMAGE  DONE  IN   QUENCHING  FIRE.  89 

past  redemption,   and   that  what  was  preserved   was  in 

the  nature  of  salvage  or  wreck.     To  this  it  was  replied, 

that  if  this  principle  were  to  prevail,   there  would  be 

an   end    to    general    average    altogether ;    for   it   would 

be    equally    applicable  to    a   jettison,   and    the    risk   of 

foundering   from   a  leak   might  be  as  great  as  that  of 

aestruction    by  fire.      W.    Williams,    J.,   gave  judgment  "•  TFuuams, 

in  favour  of  the  shipowner's  claim.     The  question,  he 

said,  was  to  be  tested   by  applying  the  maxim  of  the 

Rhodian    law.     Omnium    contribntione    sarciatur    quod  pro 

omnibus  datum  est.      As  to  the  objection,   that  the  tire 

arose   from   spontaneous   cr)mbustion,    that  is,    from  tlie 

fault  of  the  cargo,  it  was  to  be  observed  that  the  present 

claim  was  not  made  on  behalf  of  the  owner  of  the  cargo, 

but,  on  the  contrary,  was  by  the  shipowner  upon  him, 

so  that  the  fault  of  the  cargo  was  no  answer  fw).     Next, 

as  to  the  argument  that  the  cargo  was  already  practically 

lost  past  redemption,  the  learned  judge,  after  a  careful 

examination  of  the  authorities  and  principles  by  which 

the  question  must  be  governed,  arrived  at  the  conclusion 

that  the  danger  affected  the  whole,  shi})  as  well  as  cargo, 

and  that  the  operation  was  successful  in  saving  the  ship 

and    a  large   part   of    the    cargo,    while    it    caused    the 

destruction    of     the     freight  ;     consequently    that     the 

freight,    being    given    for    all,     must    be    replaced    by 

contribution  [o). 

The    learned    judge  pointed  out    that    one   of   the  There  must 

■1..  „  ,  ....  -  be  a  real 

conditions  oi  a  general  average  is  that  "  it  must  be  a  sacrifice. 
real  sacrifice,  and  not  a  mere  destruction  or  casting  off 
of  that  which  had  become  already  lost,  and  consequently 
of  no  value."     In  illustration  of  this  he  cited  an  American 
decision,  where  a  vessel  laden  with  lime  was  hauled  out 

(n)  Ante,  §  12.  (o)  Pirie  v.  Middle  Dock  Co.  (1881), 

4  Asp.  Mar.  Law  Cas.  388. 


90 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Whitecross 
Wire  Co.  v. 
Saviil. 
Full  argu- 
ment of  the 
general 
question  in 
the  Court  of 
Appeal. 


into  the  stream  and  scuttled,  because  the  lime  was  on 
fire.  The  lime  was  destroyed  at  once,  and  the  ship  was 
saved ;  but  it  was  held  that  the  ship  did  not  contribute 
for  the  lime,  because  the  lime  could  not  possibly  be 
preserved,  and  the  ship  was  saved  by  only  hastening  its 
destruction  (j*^). 

In  spite  of  this  consensus  of  judicial  authority  on 
the  general  question,  extending  over  a  period  of  about 
ten  years,  it  appears  to  have  been  thought  worth  while 
to  carry  the  question  up  to  the  Court  of  Appeal,  in  order 
to  have  the  wdiole  matter  argued  afresh,  unhampered  by 
precedent.       The   iron   ship    Himalaj^a,   bound   for  Wel- 
lington, New  Zealand,  had  arrived  at  that  port,  and  had 
landed  the  greater  portion   of  her  cargo,  when   a  fire 
broke  out  on  board,  which  was'  extinguished  by  pouring 
water  into  her  hold.     The  ship  was  much  damaged  by 
the  fire  ;  the  skin  was  charred,  and  the  timber  of  the 
deck  was  charred  about  half  through  ;  she  was  in  im- 
minent peril  until  such  time  as  the  water  had  put  out 
the  fire.     If  the  water  had  not  been  got  under  speedily 
the  whole  of  the  woodwork  about  the  ship  would  have 
been    consumed.     Among    other   portions  of    the  cargo 
damaged  by  the  water  poured  in  was  a  quantity  of  iron 
wire  belonging  to  the  plaintiffs.    There  was  some  evidence 
that  this  wire  had  been  rendered  unmerchantable  by  the 
fire ;  but  it  was  proved  that  it  was  injured  by  the  water 
poured  down  into  the  hold.     The  fire  might  have  been 
extinguished  by  removing  one  of  her  plates  and  thereby 
scuttling  lier,  but  much  damage  would  have  been  done. 
On  these  facts  the  owners  of  the  wire  made  a  claim  on 
the  shipowners  for  contribution  towards  their  damage, 


[p)  Nimick  v.  Holmes  (1855),  25 
Pennsylv.  366;  cited  4  Asp.  Mar. 
Law  Cas.  392.     The  decision  in  tlii.s 


case  was  confirmed  in  tlie  case  of 
Crockett  v.  DoJ<je,  3  Fairf.  190  ;  infray 
p.  94,  note  (2). 


SECT.  Xlir.]       DAMAGE  DONE  IN  QUENCHING   FIRK.  91 

as  general  average,  and  Pollock,  B.,  gave  judgment  in 
their  favour.     Tliis  was  appealed  against. 

In  support  of  the  appeal  it  was  argued,  1st,  that  ArgTiments. 
there  was  no  sacrifice,  because  the  wire,  at  the  time  the 
water  was  poured  on  it,  was  in  fact  worthless,  as  it  would 
have  been  destroyed  by  the  fire ;  2nd,  there  was  no 
common  danger  to  the  whole,  for  the  ship  was  built  of 
iron,  and  so  could  not  be  destroyed,  and  was  in  shallow 
water  and  could  have  been  scuttled  and  raised  again 
after  the  fire  was  out;  8rd,  the  master  did  no  more 
than  his  ordinary  duty  in  pouring  water  down,  since  he 
resorted  only  to  the  ordinary  method  of  extinguishing 
a  fire ;  and,  4th,  at  the  time  of  the  fire  the  common 
adventure  was  at  an  end,  for  the  voyage  was  over  and 
a  large  part  of  the  cargo  was  already  safe  on  shore.  The 
liability  to  a  general  average  contribution,  it  was  con- 
tended, is  an  obligation,  not  of  common  law,  but  of 
maritime  law,  and  ceases  when  the  adventure  is  finished, 
that  is,  when  the  carriage  of  the  goods  to  the  port  of 
destination  is  completed  [q). 

Lord  Coleridge,  in  the  course  of  the  argument, 
observed  :  *'  Ativood  v.  Cellar  (r)  certainly  shows  that  any 
consequence  flowing  from  a  general  average  act  is  the 
subject  of  a  general  average  contribution,  although  it 
happens  afterwards,  and,  therefore,  is  separated  in  point 
of  time  from  the  general  average  act"(6'). 

The  judgment  of  the  court  was  unanimous  against 
the  appeal. 


(</)  A  further  point  was  raised  iu  trial,   and   declined   to   take   it  into 

the   course   of    the   argument,    viz.,  consideration    for    the    purposes    of 

that  the  wire,  at  the  time  when  the  their  decision, 

water  was  poured  on  it,  had  become  (r)  (1880),  5  Q.  B.  D.  286. 

unmerchantable  through  damage  by  (.s)    IVhitecross   Wire   Co.   v.    SaiyiU 

fii-e;    but   the   court   said   that   this  (1882),  8  Q.  B.  D.  653,  at  p.  658. 
question  had  not  been  raised  at  the 


92 


SACRIFICES  OF  CARGO. 


PCHAP.  II. 


LordColeiidge.  "It  must  be  shown,"  said  Lord  Coleridge,  "that  an  imminent 

peril  existed,  and  that  the  master  deliberately  and  for  the  sake  of 
preserving  the  adventure  sacrificed  that  in  respect  of  which  contri- 
bution is  claimed.  ...  I  am  unable  to  come  to  the  conclusion 
that  this  is  not  a  case  of  general  average;  the  facts  seem  to  me  to 


fall  within  the  definition  of  a  general  averag-e  act. 


No 


authority  is  against  our  decision.  In  Atwood  v.  Sellar  (s),  the  judg- 
ment of  this  court  was  delivered  by  Thesiger,  L.  J.,  who  points 
out  that  the  practice  of  average  adjusters  professes  to  follow  legal 
principles  and  authority.  The  principle  is  laid  down  in  the  following 
general  terms  (p.  289):  'The  principle  which  underlies  the  whole 
doctrine  of  general  average  contribution  is,  that  the  whole  loss 
immediate  and  consequential  caused  by  a  sacrifice  for  the  benefit 
of  cargo,  ship,  and  freight  should  be  borne  by  all.'  .  .  .  On 
general  principles  nothing  ought  to  make  us  hesitate  to  bring  the 
case  before  us  within  the  rule  of  general  average.  .  .  .  The 
fourth  point  urged  on  behalf  of  the  defendants  is  somewhat  extra- 
ordinary. .  .  .  The  voyage  probably  had  come  to  an  end,  and 
it  may  possibly  be  that  the  liabilities  of  the  underwriters  had  ceased; 
but  the  liabilities  of  the  shipowners  upon  the  bills  of  lading  were 
still  existing,  and  this  shows  that  the  maritime  adventure  was  not 
Allowance  at  an  end.  .  .  .  The  rule  which  we  lay  down,  of  course,  applies 
to  damage  by  ^^^^  ^°  ^^^'  ^^  ^^®  plaintiffs'  wire  was  damaged  by  water;  for  there 
water.  must  be  an  intentional  sacrifice.    But  no  distinction  between  damage 

by  water  and  damage  by  fire  was  made  at  the  trial,  and  the  case 
was  rested  on  the  point  whether  goods  damaged  by  pouring  water 
upon  them  are  the  subject  of  a  general  average  contribution  "(i). 

Brett,  L.J.  Brett,  L.  J.,  said: 

"If  there  is  an  imminent  danger,  and  if  the  captain  sacrifices 
part  in  order  to  save  the  rest  of  the  adventure,  a  claim  for  a  general 
average  contribution  arises.  It  has  been  argued  that  there  must 
be  danger  of  an  immediate  total  loss  of  the  whole  adventure:  some 
phrases  in  Arnould  on  Insurance  appear  to  justify  this  contention; 
but  I  think  this  argument  has  been  pushed  too  far  on  behalf  of  the 
defendants.  ...  It  has  been  argued  that  no  total  loss  of  the 
ship  wo\ild  have  occurred  in  the  present  case,  because  she  was  built 
of  iron  and  could  not  be  destroyed  by  fire;  but  it  was  proved  that 
the  fire  had  got  a  strong  hold  upon  her,  and  it  would  have  burnt 

(.s)  (1880),  5  Q.  B.  D.  286.  {t)   Whitecross    Wire  Co.  v.   Savill 

(1882),  8  Q.  B.  D.  653,  at  p.  659. 


SECT.  XIII. J       DAMAGE   DONE  IN  QUENCHING  FIRE.  93 

her  woodwork,  such  as  her  deck  and  masts,  and  also  her  sails;   if 
the  fire  had  not  been  extinguished,  she  would  have  been  brought 
almost  to  the  state  of  a  wreck.    It  has  been  said  that  the  defendants'  Dama«-e  by 
vessel  might  have  been  scuttled;   but  the  expense  of  raising  and  "^ould^ 

repairing  her  would  have  entitled  her  owners  to  a  general  average  general 
•1,      •  1    1  f.  average, 

contribution;  and  because  an  apparently  alternative  mode  of  pro- 
ceeding existed,  the  captain  cannot  be  said  to  have  acted  unreason- 
ably. It  is  said  that  it  was  within  the  captain's  ordinary  duty  to 
extinguish  the  fire;  still  it  was  his  duty  to  carry  the  goods  safely, 
and  in  extraordinary  circumstances  he  becomes  in  effect  the  agent 
for  all  parties.  As  I  have  before  said,  there  must  be  an  intentional 
sacrifice:  here  the  captain  intentionally  inundated  the  cargo,  and 
thereby  necessarily  damaged  it  by  water.  I  wish  to  point  out  that 
if  the  ship  had  been  improperly  flooded,  the  owners  of'  the  cargo 
would  have  a  right  of  action  against  the  shipowners  for  all  the 
cargo  injiu-ed.  Similarly  if,  under  the  pretence  of  preserving  the 
adventure,  the  cargo  is  jettisoned  without  due  cause,  the  owner  will 
have  a  right  of  action  against  the  shipowners  for  the  Avhole  of  his 
loss.  All  the  circumstances  seem  to  me  to  exist  which  constitute 
a  general  average  loss  "  (u). 

[If  any  doubt  could  possibly  hav^e  remained  after 
these  decisions  as  to  the  right  to  recover  in  general 
average  for  the  damage  done  by  pouring  water  into  the 
hold  to  extinguish  a  fire,  it  is  set  at  rest  by  the  judgment 
of  the  House  of  Lords  in  Greenshields  v.  Stephens^x) ;  and 
the  same  principle  obviously  applies  in  the  case  of  other 
reasonable  steps,  such  as  scuttling  (,y),  taken  for  the  same 
purpose.] 

At  present  the  second  of  the  rules  of  practice  of  the  Practice  as  to 
Association    of    Average    Adjusters    dealing   with    the  touched  by 
question  of  damage  done  by  water  in  extinguishing  a 


(«()    Whitecross   Wire  Co.   v.  Savill  ou    a    reef,    was    general    average, 

(1882),  8  Q.  B.  D.  653,  at  p.  G62.  {Pacific  Mail  S.S.  Co.  v.  .V.   Y.  11.  & 

[x)   [1908]  A.  C.  431.      Similarly  R.  Min.  Co.  (1896),  74  Fed.  E.  564. 

it  has  been  held  in  the  United  States,  {y)  So  held  in  Fapayanni  v.  Grara- 

that    damage    to    cargo    caused   by  inan  S.S.    Co.   (1896),    1   Com.   Cas. 

flooding  a  stranded  steamer,  in  order  44S.       See     also    Achard    v.    Birta, 

to  prevent  a  total  loss  from  pounding  supra,  p.  87. 


94 


SACRIFICES  OF  CARGO. 


[chap.  II. 


fire,  in  virtue  of  which  we  excKide  from  general  average 
the  damage  done  by  water  to  a  bale  or  package  which 
the  fire  had  touched  when  the  water  was  poured  on  it, 
has  not  been  either  confirmed  or  overthrown  by  a  legal 
decision.  It  is  based  on  the  argument  of  conniion  sense, 
that  the  water  which  in  the  same  act  damages  and  saves 
a  package  already  kindled  cannot  be  said  to  do  that 
package,  on  the  whole,  an}^  harm  (2). 

[Yet  the  loss  by  fire  of  the  rest  of  the  cargo  might 
have  been  inevitable  if  the  water  had  not  been  poured 
over  it ;  and  the  ar^-ument  that  the  water  had  on  the 
whole  done  no  harm  might  equally  well  be  advanced  in 
such  a  case  with  regard  to  that  part  of  the  cargo.  If  the 
package  which  has  been  on  fire  has  retained  some  value, 
and  the  damage  done  by  the  water  can  be  separated  from 
that  done  by  the  fire(«),  it  seems  more  in  accordance  with 
principle  to  allow  the  former.  This  view  is  supported 
by  a  passage  in  Mr.  Justice  Channell's  judgment  in  the 
case  of  GreensJiields  v.  Stephens.  Referring  to  No.  3  of 
the  York- Antwerp  Rules,  the  learned  judge  said : — 

'That  exception  that    no    compensation    shall    be    made    for 


(2)  The  rule  observed  in  practice 
in  the  United  States  is  the  same. 
(Gourlie,  General  Average,  p.  157.) 
And  in  the  case  of  Slater  v.  Hayward 
Euhber  Co.  (1857),  26  Conn.  128,  it  was 
held  that  where  goods  on  fire  are 
jettisoned,  no  contribution  in  general 
average  is  due.  See  also  the  case  of 
Crockett  v.  Dodge,  3  Fairf.  190,  where 
a  vessel  was  scuttled  in  order  to 
extinguish  a  fire  in  her  cargo  of 
lime.  The  lime  was  destroyed  in 
consequence  of  the  scuttling,  but  the 
ship  was  saved.  It  was  held  that  no 
contribution  was  due  in  respect  of  the 
lime.  See,  however.  Appendix  V., 
post,  p.  746.  No.  3  of  the  York- 
Antwerp  Eules,  1890,  is  an  extension 
of  the  rule,  and  provides  also  that 


no  compensation  shall  be  made  for 
damage  to  such  portions  of  a  bulk 
cargo  as  have  been  on  fire.  In 
Greenshiefds  v.  Stepliens,  [1908]  1 
K.  B.  51,  the  C.  A.  rejected  the 
contention  that  all  the  contents  of 
one  hold  constituted  only  a  single 
"  portion  "of  a  bulk  cargo,  and  the 
judgment  was  affirmed,  [1908]  A.  C. 
431. 

(a)  In  an  American  case,  where  it 
was  impossible  to  distinguish  between 
the  damage  done  bj'  fire  and  that 
done  by  steam  turned  into  the  hold 
to  extinguish  the  fire,  it  was  held 
that  a  claim  for  contribution  had  not 
been  made  out.  [Rdmnce  Mar. 
Ins.  Co.  V.  N.  Y.  cfc  a.  Mail  S.S.  Co. 
(1896),  77  Fed.  E.  317.) 


SECT.  XIII.J       DAMAGE  DONE  IN  QUENCHING  FIRE. 


95 


damage  to  such  portions  of  the  ship  and  cargo  or  separate  packages 
as  have  been  on  fire,  seems  to  me  to  mean  that  in  those  cases  the 
portions  that  have  been  on  fire  are  to  be  treated  as  wreck,  as  it  is 
called,  in  this  case,  that  is  to  say,  it  is  something  the  value  of 
which  has  already  gone,  and  which  cannot,  therefore,  be  considered 
to  be  sacrificed  for  the  general  good;  but,  of  course,  if  there  were 
not  this  rule,  there  would  be  a  question  in  each  case  of  fact  whether 
in  the  particular  case  the  damage  had  gone  to  the  extent  in  which 
you  could  say  it  was  wreck  within  the  meaning  of  that  word.  If 
it  is,  there  is  no  sacrifice  "  (&).] 


Car  if  0  burnt  as  Fuel. 

§  14.  Another  sacrifice  of  cargo,  now  recognised  as  Cargo  burnt 
-the  subject  of  general  average,  consists  in  the  using  it  'TJ£a.^''^ 
upon  emergency  as  fuel  for  the  engines  of  a  steam-ship, 
when  this  is  needed  for  the  common  safety ;  with  this 
proviso,  that  the  fuel  originally  supplied  for  the  engines, 
at  the  outset  of  the  passage,  was  not  insufficient.  On 
this  subject  there  have  been  the  following  decisions  in 
•our  courts : 


In  the  case  of  Harrison  v.   Bank  of  Australasia  (c),  //«,.,•; 


son  V. 


where  not  indeed  cargo,  but  a  quantity  of  spare  spars 
belonging  to  the  ship,  were  burnt  as  fuel  for  her  donkey- 
engine,  the  coal  having  run  short;  the  four  judges  of 
the  Court  of  Exchequer  were  equally  divided  on  the 
question  whether  the  value  of  the  spars  should  be  brouo-ht 


Bank  of 
.Inxtralay'ui. 


(b)  Shipping   Gazette,    liytk   Dec. 
U906. 

(c)  (1872),  L.R.  7  Exch.  39.  Kelly, 
"C.  B.,  and  Bramwell,  B.,  held  that 
this  loss  was  properly  the  subject  of 
-general  average.  "  The  captain," 
said  Kelly,  C.  B.,  delivering  the 
judgment  of  both,  "prudently  and 
properly  sacrificed  some  spare  spars, 
.and  saved  the  ship  and  cargo.  There 
.seem  to  us  here  all  the  ingredients  of 


a  case  of  general  average  :  peril  of  the 
seas  imminent,  certain  loss  in  a  shf)rt 
time  unless  something  not  to  be 
anticipated  should  intervene,  and  a 
sacrifice  of  the  property  of  one  for 
the  benefit  of  all."  Martin  and 
Oleasby,  BB.,  held  that  the  loss  was 
not  general  average,  on  the  gi-ound 
that  there  was  not  such  an  imminent 
danger  of  total  loss  as  was  requisite 
to  constitute  a  general  average. 


96  SACRIFICES  OF  CAKGO.  [CHAP.  II. 

into  general  average;  and  the  junior  judge  withdrawing 
his  judgment,  judgment  was  given  for  the  plaintiff. 

In  the  subsequent  case  of  Robinson  v.  Price^  a  ques- 
tion substantially  the  same  was  decided  in  the  Court  of 
Appeal. 
Robinson  v._  ""Phe    shi])    Johi    Baring,    bound   with   timber   from 

Quebec  for  London,  was  and  had  for  several  years  been 
supplied  with  a  donkey-engine,  adapted  for  the  loading 
and  discharge  of  cargo  and  ballast,  and  also  for  pump- 
ing the  ship,  in  aid  of  the  ship's  hand  pumps,  when 
required.  Such  engines  were  often,  though  at  that  time 
not  universally,  used  in  that  trade.  At  the  time  of  sailing 
the  ship  had  five  tons  of  coal  on  board,  which  was 
admitted  to  be  a  sufficient  supply  of  fuel  for  all  pur- 
poses of  the  ship  while  at  sea,  other  than  pumping,  for 
a  much  longer  voyage  than  that  from  Quebec  to  London. 
While  at  sea  the  ship  fell  in  with  bad  weather,  and 
sprung  so  bad  a  leak  that  she  could  hardly  be  kept  free 
by  constant  pumping.  For  this  purpose  it  presently 
became  necessary  to  have  the  pumps  worked  by  the 
donkey-engine,  and  as  the  supply  of  coal  threatened  to 
run  short,  the  captain  ordered  some  of  the  ship's  spare 
spars,  and  a  portion  of  the  cargo,  to  be  used  with  the 
coal  to  keep  up  the  fire  of  the  donkey-engine ;  by  which 
means  the  ship  was  eventually  brought  safe  into  port. 
The  questions  for  the  court  were,  whether  the  burning 
of  the  spare  spars,  and  whether  the  burning  of  the  cargo, 
were  to  be  replaced  as  general  average.  The  judgment 
of  the  court  was  delivered  by  Lush,  J.,  who  said : 

iMsh,  J.  "  The  circumstances  under  wliicli  tlie  ship's  spars  and  the  cargo 

were  used  as  fuel  for  the  donkey-engine  satisfy  all  the  conditions 
of  a  general  average  claim.  The  peril  "was  imminent;  the  sacrifice 
voluntary,  in  the  sense  of  being  an  act  of  will  on  the  part  of  the 
master;   it  was,  in  the  emergency,  necessary  in  order  to  save  the- 


SECT.  XIV.J  CARGO  BURNT  AS  FUEL.  ^7 

ship  from  sinking,  and  was,  of  course,  made  with  a  view  to  the 

safety  of  the  whole  adventure — ship,  freight,   and  cargo.     Priind 

facie,  therefore,  the  case  of  the  plaintiff  is  made  out.     But  it  was 

objected  that,  as  tiio  ship   was  furnished  with    a    donkey-engine, 

adapted  and  intended,  in  ease  of  need,  for  pumping  as  well  as  for 

loading  and  discharging  the  cargo,  the  owner  was  bound  to  provide 

sufficient  fuel  for  its  use;   that  if  this  had  been  done  the  resort  to 

the  spars  and  cargo  would  not  have  been  required;  that  it  was  not 

done,  and,   therefore,  the  use   of  the  spars  and  cargo  was  not  a 

necessity  brought  about  by  the  perils  of  the  sea,  but  a  necessity 

occasioned  by  his  own  default.     Although  Ave  cannot  accede  to  the 

proposition  in  its  terms,  we  entirely  accede  to  the  principle  that 

underlies  it.     We  think  that  a  shipper  of  cargo  is  entitled,  in  time 

of  peril,  to  the  benefit  not  only  of  the  best  services  of  the  crew,  in 

order  to  save  his  goods,  but  of  the  use  of  all  the  appliances  for  that 

purpose  with  which  the  ship  is  provided.     It  follows  that,  Avhere 

a  ship  is  fitted  up  with  auxiliary  steam  pumping  poM'er,  it  is  the 

<luty  of  the  owner  to  make  some  provision  for  supplying  the  engine 

with  fuel.     Not  that  he  is  bound  to  have  on  board  enough  for  every  Duty  of 

possible  emergency,  but  he  is  bound  to  have  a  reasonable  supply,  f'''^'^™^^'  ^° 

having  regard  to  the  nature  of  the  voyage,  the  season  of  the  j'oar,  enough  on 

the  quality  of  the  cargo,  the  condition  of  the  ship,  and  what  ex-  ""        ° 

perience  has  shown  to  be  prudent  to  provide  against  under  those 

■conditions.     If  he  fails  to  do  so,  he  cannot  call  upon  the  owners 

of  cargo  to  contribute  towards  that  reasonable  supply.     That  would 

be  to  make  them  pay  for  that  which  he  ought  to  have  provided  at 

his  own  expense.     If,  under  such  circumstances,  the  opportunity  Case  of 

•occurs  during  a  time  of  peril  of    buying    coals    from    a    passing  ^'^y\'^=  ^™"^ 

steamer,  we  think  it  clear  that  he  could  not  charge  their  cost  as  an  steamer. 

extraordinary  expenditure  entitling  him  to  general  average.     That 

statement  of  the  case  not  being  so  explicit  as  it  might  have  been 

upon  this  point,  we  thought  it  right  to  send  it  back  to  the  learned 

counsel  who  settled  it  between  the  parties,  to  find  from  the  evidence 

he  had  taken  one  way  or  the  other  upon  this  question.     He  has 

returned  it  to  us,  with  a  statement  as  follows:  '  I  find  that  the  John 

Baring,  when  she  left  Quebec,  had  on  board  a  reasonable  supply 

•of  coal  for  the  donkey-engine  for  pumping  purposes.'     This  findino- 

concludes  the  defendants.     The  prima  facie  claim  to  general  average 

coatribution  is  not  displaced  by  any  default  on  the  part  of  the 

•owner,  and  our  judgment  must  be  for  the  plaintiff  "  (r?). 

{(I)  llvhimon  V.  Price  (1876),  2  Q.  B.  D.  91,  at  p.  94. 
L.  K 


98 


SACRIFICES  OF  CARGO. 


[chap.  II. 


Same  case  on 
appeal. 


Conclusion. 


This  decision  was  affirmed  upon  appeal.  Lord  Cole- 
ridge said  :  "  In  my  opinion  the  judgment  of  the  Queen's 
Bench  Division  was  perfectly  right.  The  facts  are  now 
stated  so  distinctly  as  to  preclude  all  argument.  It  is 
impossible  to  sa}^  that  under  the  circumstances  the  sacri- 
fice of  the  spars  and  cargo  was  not  general  average." 
Bramwell  and  Brett,  L.  JJ.,  concurred  (e). 

There  seems  to  be  no  distinction  in  point  of  prin- 
ciple between  burning  cargo  to  feed  a  ship's  donkey- 
engine,  and  burning  it  to  feed  the  ordinary  working 
engines  of  a  steamer,  provided  the  two  conditions,  of 
imminent  danger  if  the  engines  are  not  worked,  and  of 
a  sufficient  supply  of  fuel  at  the  outset,  are  the  same  in 
both.  What  is  a  sufficient  supply,  so  that  it  may  with 
confidence  be  said  that  there  has  been  no  default  on  the 
part  of  the  owner,  must  be  determined  by  the  tests  laid 
down  in  the  above  judgment.  Account  must  be  taken 
of  the  engines'  daily  consumption,  and  of  the  maximum 
ordinar}^  length  of  the  voyage,  and  to  the  amount  thus 
determined  should  be  added,  it  is  conceived,  a  reasonable 
margin  to  cover  uncertainties,  according  to  what  prudent 
owners  usually  do  in  the  particular  trade  (/).     Supposing 


(e)  ,S.  C.  (1877),  2  Q.  B.  D.  295. 

(/)  In  a  ease  tried  at  Nisi  Prius, 
wliere  a  (quantity  of  coffee  liacl  been 
burnt  as  fuel  for  a  steamer,  and  it 
was  alleged  on  the  one  band  that  the 
fuel  originally  supplied  for  the  steamer 
was  insufficient,  and  on  the  other 
that  there  had  been  a  sufficient  supply 
at  first,  and  that  the  coffee  was  burnt 
for  the  benefit  of  the  whole  venture, 
Keating,  J.,  directed  the  jury  that 
"  there  was  no  obligation  cast  upon 
the  shipowner  to  have  more  than  a 
reasonable  and  ordinary  supply  of 
coal  on  board,  having  regard  to  the 
character    of    the   voyage,    and   the 


character  of  the  weather  that  was  to 
be  expected.  .  .  If  they  should 
bo  of  opinion  that  there  had  been 
no  error  committed  in  respect  of  the 
coaling  and  the  na\dgation  of  the 
ship,  and  also  as  to  her  condition  to 
make  the  voyage,  then  they  would 
consider  whether  what  had  been  done 
was  not  for  the  benefit  of  all  parties 
interested  in  the  ship  and  cargo." 
The  jury,  being  unable  to  agree,  were 
discharged.  {S/iandv.  Ash,  Mitchell's 
Mar.  Beg.  1872,  p.  242.)  If  it  be 
necessary  for  purposes  of  coaling  to 
divide  a  voyage  into  "  stages,"  the 
vessel  must  load  a  reasonablv  suffi- 


SECT.  XIV.] 


CARGO  BURNT  AS  FUEL. 


99 


that  the  original  supply  has  been  sufficient,  and  that  from 
stress  of  weather  or  other  accidental  cause  the  coal  runs 
short,  it  still  would  have  to  be  proved  that  the  ship  and 
cargo  would  be  in  danger  if  the  engines  were  not  kept 
going.  The  motive  of  saving  time  would  not  be  suffi- 
cient. If  she  could  complete  her  voyage  under  sail,  the 
mere  advantaoe  to  the  owners  of  the  cars'o  and  of  the 
ship  from  completing  it  more  quickly  under  steam  would 
not  justify  the  destruction  of  a  portion  of  the  cargo.  But 
if  a  steamer  were  unmanageable  under  canvas  alone,  or 
could  not  be  kept  off  a  lee-shore  unless  by  the  aid  of  her 
engines,  or  for  similar  reasons  would  be  in  imminent 
danger  unless  her  engines  could  be  kept  going,  the  cargo 
necessarily  sacrificed  for  the  purpose  ought  certainly  to 
be  replaced  as  general  average.  And  this  is  now  the 
established  practice  (^), 

OiJicr  Sacrifices  of  Cargo. 
§  15.   When  cargo  is  discharged  from  a  ship  under  Damage  to 

,.  ,  ,  „-,.-....  cargo  in 

such  Circumstances  that  the  act  ot  discharging  it  is  a  discharging. 
general  average  act,  or  an  extraordinary  act  performed 
for  the  common  preservation  of  ship  and  cargo,  and 
when  such  discharging  necessarily  entails  damage  or 
partial  loss  upon  the  cargo,  such  damage  or  loss  falls 
within  the  definition  of  general  average,  and  in  j^ractice 
is  so  treated  [h). 


cient  quantity  of  coal  at  the  com- 
mencement of  each  "  stage  "  iu  order 
to  comply  with  the  warranty  of  sea- 
worthiness. {The  Vortigern,  [1899] 
P.  140  (C.  A.) ;  (ireenock  S.S.  Co.  v. 
Maritime  Ins.  Co.,  [1903]  2  K.  B. 
(357  (C.  A.).)  See  also  Marine  Ins. 
Act,  1906,  s.  39,  sub-s.  3. 

{g)  See  York- Antwerp  Eules,  No.  9. 

(//)  Thus,  a  loss  of  cargo  in  barges, 


into  which  it  had  been  discharged  to 
enable  the  vessel  to  make  a  port  of 
refuge,  should  be  allowed  as  general 
average.  See  Abbott,  5th  edit.  p.  346, 
cited  with  approval  by  Cresswell,  J., 
in  Hallett  v.  Wigrum  (1850),  9  C.  B. 
580,  608,  and  by  Mathew,  J.,  in 
McCaU  v.  Houlder  (1897),  2  Com. 
Cas.  129,  132.  See  also  per  Wills,  J. , 
in   Royal  Mail  Steam  Packet  Cn.  \. 


h2 


100 


SACRIFICES  OF  CA.KGO. 


[chap.  II. 


Discharging 
when  ship 
ashore. 


There  are  circumstances  in  which  the  discharging 
of  cargo  can  scarcely  be  di.stinguished  from  a  jettison. 
For  example,  if  a  ship  is  stranded  she  may  be  in  extreme 
danger  unless  she  can  be  lightened  sufficiently  to  float 
her  off  by  the  next  rise  of  tide  ;  for  which  purpose  a 
portion  of  the  cargo  may  be  thrown  out,  perhaps  upon 
the  sand  or  beach,  not  intending  its  destruction,  but 
with  the  hope  that  it  may  be  fetched  into  safety  by 
carts  or  boats  from  the  shore.  Or  it  may  be  that  the 
only  way  in  which  the  cargo  can  be  put  ashore  is  by 
dragging  it  through  surf,  or  floating  it  in  rafts.  Or  it 
may  have  to  be  landed  tlirough  heavy  rains,  with  no 
means  of  protection,  or  the  only  place  where  it  can  be 
deposited  may  be  a  bank  of  mud.  In  cases  of  this  kind, 
where  exposure  of  the  cargo  to  great  risk  or  even  cer- 
tainty of  damage  is  deliberately  adopted  to  avert  the 
greater  evil  of  extreme  danger  to  the  entire  property, 
all  damage  or  loss  of  cargo  which  occurs  in  consequence 
of  such  exposure,  and  in  spite  of  reasonable  care  to  pre- 
vent it,  is  clearly  the  subject  of  general  average.  It 
is  perfectly  analogous  to  damage  by  water  going  down 
when  the  hatches  are  opened  for  jettison,  or  when  water 
is  poured  upon  the  cargo  to  extinguish  a  fire ;  that  is  to 
say,  this  or  that  particular  damage  was  not  intended  or 
aimed  at,  but,  for  the  common  safety,  a  measure  was 
resorted  to  which  naturally  and  indeed  inevitably  pro- 
duced these  results  (?'). 


Enyliah  Bank  of  Rio  (1887),  19  Q.  B. 
D.  362,  372;   Arnould,  §  924. 

(»■)  See  McCall  v.  I/oulder,  infra, 
p.  102.  It  may  be  well  distiactly  to 
point  out  that  what  is  here  said  is 
only  applicable  where  the  discharge 
itself  is  properly  a  general  average 
act.  In  cases  of  wreck,  where  the 
cargo  is  discharged  really  or  princi- 


pally for  its  own  preservation,  there 
is  no  ground  for  claiming  as  genei-al 
average  the  damage  it  may  sustain 
in  the  process.  Nor,  indeed,  in  such 
cases  is  the  expense  of  discharging 
properly  to  be  treated  as  general 
average.  It  may  often  be  difficult 
to  distinguish  between  the  two  chisses 
of  cases.     Since  the  damage  and  the 


SECT.  XV.] 


DAMAGE  IN  DISCHARGING. 


101 


Or  again,  when  a  ship,  being  in  a  leaky  state  or  Discharo-ing- 
needing  repairs,  is  for  the  common  safety  taken  into  a  refugT'*°* 
port  of  refuge,  and  it  is  necessary  to  discharge  the  cargo 
there,  then,  if  the  discharging  is  for  the  common  safety 
of  all,  or  is  a  consequence  of  the  bearing  up  to  repair, 
and  is  on  one  of  these,  or  indeed  any  other,  grounds  pro- 
perly treated  as  a  general  average  act,  any  damage  or 
loss  of  cargo  which  necessarily  follows  from  so  dis- 
charging it  is  properly  to  be  treated  as  general  average 
loss  (k).  Hence  the  rule  of  practice,  now  in  force  in  the 
Association  of  Average  Adjusters,  is  expressed  as  follows : 
"  Whenever  the  cost  of  discharging  cargo  is  general 
average,  all  loss  or  damage  necessarily  arising  to  cargo 
therefrom  shall  be  allowed  in  general  average'"'  (/). 

It  is  not,  perhaps,  at  first  sight  obvious  why  the  dis-  Why  dama-e 
charging  of  cargo  in  a  port  of  refuge  should  necessarily  discharging!^ 
lead  to  its  being  damaged.  There  are  three  principal 
reasons :  the  cargo  may  have  to  be  discharged  with  un- 
usual haste,  as  when  the  ship  is  leaky;  or  in  a  place 
where  it  is  not  usual  to  unload  so  large  ships  or  cargoes 
of  that  kind,  so  that  there  are  not  the  proper  appliances ; 
or,  lastly,  the  cargo  may  be  of  such  a  nature,  e.g.,  coals, 
that  it  cannot  be  landed  without  suffering  loss  by  break- 
age or  the  like,  so  that  to  discharge  it  at  a  port  of  refuge, 
in  addition  to  the  port  of  destination,  is  simj^ly  doubling 
the  ordinary  wastage.     In  any  of  these  cases,  what  the 


exijense  must  stand  or  fall  together, 
the  necessary  damage  indeed  being 
properly  a  portion  of  the  cost  of  dis- 
charging, it  will  be  convenient  to 
consider  the  whole  subject  at  large 
in  one  place,  which  must  be  in 
Chapter  IV. ,  when  we  have  to  discuss 
the  treatment  of  Salvage  Expenses. 
(/.■)  It  is  otherwise  where  the  cargo 


has  never  been  in  danger,  but  has  to 
be  discharged  to  enable  the  ship  to  be 
repaired  after  sustaining  a  particular 
average  loss.  {Hamel  v.  P.  (^  0. 
Steam  Nav.  Co.,  [1908]  2  K.  B.  298, 
Lord  Alverstone,  C.  J.) 

{I)  This  is  a  change,  based  upon 
conviction  of  its  reasonableness,  from 
a  former  practice  to  the  contrary. 


102  SACRIFICES  OF  CARGO.  [CHAP.   II. 

discharging  actually  costs  is,  the  money  outlay  plus  the 
inevitable  damage  to  cargo  (//). 

[A  curious  case  in  which  a  claim  was  made  for 
damage  to  cargo  is  the  following :  A  ship  having  sus- 
tained damage  to  her  propeller,  put  into  a  port  of  refuge, 
where  the  cargo,  which  was  perishable,  could  not  be 
stored.  In  order  to  repair  the  propeller  with  the  cargo 
on  board  she  was  tipped,  and  in  consequence  of  the 
tipping  part  of  the  cargo  was  damaged  by  sea- water. 
Mathew,  J.,  held  that  the  tipping  was  resorted  to  for  the 
preservation  of  the  ship  and  cargo  and  was  a  general 
average  act,  and  that  the  damage  to  the  cargo  being 
incidental  thereto,  although  not  contemplated,  was  a 
general  average  loss  (w).] 

Damage  by  S  ig.  Damage   to  caro'o  necessarily  resulting-  froiu 

voluntary  ^  *f  *  . 

stranding.  voluntary  stranding  should  be  the  subject  of  general 
average.  This  subject,  however,  is  fully  discussed  in 
the  following  chapter. 

Damage  from  8  17.  Damage  douc  to  cargo,  in  consequence  of  the 

cutting  away  ^  ^  o    '  x 

niast.  cutting  away  of  a  mast,  or  other  general  average  sacrifice 

of  some  part  of  a  ship, — as,  for  example,  if  the  mast 
when  cut  away  breaks  below  the  partners,  so  that  water 
gets  down  through  the  opening  and  wets  the  goods  (n) ; 
or  if  a  similar  mischance  occurs,  as  is  very  likely,  in 
cutting  away  an  iron  mast,  which  is  hollow,  and  has 
openings  below  through  which  seas  shipped  on  deck  may 

(//)  Allowance    is    also    made    in  a  loss  by  fire  or  other  accident,  while 

practice    for   cargo    pilfered    during  the  cargo  is  stored,  made  good, 

a   forced   discharge,  so   far  as   such  {m)  McCall  v.    Houlder   (1897),   2 

loss  might  reasonably  be  anticipated.  Com.  Cas.  129. 

Damage  to   cargo    merely    through  [n)  So  treated  in  the  United  States. 

delay  at  a  port  of  refuge  is  not,  how-  {Maggrath  v.  Cliurch  (1803),  Caiues, 

ever,  allowed,  whether  it  be  left  on  N.  Y.  E.  176.) 
the  vessel  or  stored  on  shore,  nor  is 


SECTS.  XVIII. — XIXA.]       SALE  OF  CARGO.  10*3 

reach  the  cargo, — is  evidently  allowable  as  general  aver- 
age. It  is  perfectly  analogous  to  damage  occasioned  by 
seas  shipped  while  the  hatclies  are  open  for  jettison. 

§  18.  Sometimes,  though  rarely  at  the  present  day,  Cargo  given 
cargo  is  sacrificed  by  being  given  in  kind  as  salvage  for  "  * 

the  entire  property.  Such  a  sacrifice  must,  of  course,  be 
treated  as  general  average  (p). 

§  19.  More  frequently,  cargo  is  sacrificed  by  being  Cargo  sold  or 
sold  or  pledged  in  order  to  raise  funds  in  a  port  of  refuge,  mise^funds. 
when  the  owners  of  the  ship  and  cargo  are   unable  or 
unwilling  to  supply  the  sum  needed  for  the  purpose  of 
releasing  the  ship  from  her  obligations  at  such  port,  and 
thereby  enabling  her  to  proceed  on  her  voyage. 

This  case,  however,  is  involved  in  complications 
which  properly  belong  to  a  larger  subject,  viz.  the  treat- 
ment of  loss  and  expense  incurred  in  order  to  raise  funds 
required  for  general  average  purposes.  This  it  will  be 
convenient  to  deal  with  later  in  a  separate  chapter, 

§  19a.  [Mr.  Lowndes  does  not  discuss  the  question  Sacrifice  of 

'  1  1   •    1  1-1  goods  not 

wfiether  goods  which  are  not  shipped  as  cargo  must  included  in 
be  contributed  for  if  they  are  sacrificed,  though  he 
lays  down  the  rule  that  any  kind  of  property  which  is 
preserved  from  destruction  must  contribute  unless  there 
be  some  special  reason  for  exempting  it  (q).  Arnould 
stated  that  the  jettison  of  goods  for  which  there  is  no 
bill  of  lading  gives  no  claim  to  contribution  (r).  He 
only  cited  foreign  authorities,  and  probably  had  in  his 

{}))  On  the  same  principle,  where  [Hicks   v.    Paliiujton   (1590),   Moore, 

cargo    is    voluntarily   given    t;p    to  297.) 

pirates  by  way  of  composition,  the  {q)  Post,  p.  375. 

sacrifice  is  a  subject  for  contribution.  (r)  Arnould,  2nd  edit.  p.  904. 


104 


SACRIFICES  OF  CARGO. 


TCHAP.  II. 


mind  the  case  of  a  clandestine  shipment  in  fraud  of  the 
shipowner,  in  which  case  the  disahowance  of  contribu- 
tion may  well  be  justified  (i).  With  this  exception, 
however,  there  is  no  valid  reason  for  refusing  contribu- 
tion on  the  ground  that  no  bill  of  lading  has  been  given 
for  the  goods,  if  it  be  proved  that  thev  were  sacrificed 
or  damaged  by  a  general  average  act. 
Sacrifices  of  The    tiucstion   whether  passengers   are    entitled   to 

passengers'  .  ,  p       \      •  rn  i 

and  seamen's  contribution  for  the  sacrifice  oi  their  enects  has  not 
been  litigated  in  this  country,  and  instances  of  such 
sacrifice  seem  to  have  been  too  rare  to  give  rise  to  any 
settled  practice  (t).  It  may  be  argued  that  as  passengers' 
baggage  is  not  made  to  contribute  when  saved,  it  ought 
not  to  be  contributed  for  when  sacrificed.  The  argu- 
ment founded  on  the  want  of  reciprocit}'  does  not, 
however,  appear  to  the  editors  to  be  convincing,  and 
they  agree  on  this  point  ^^■itll  the  view  admirably 
expressed  by  Brown,  D.  J.,  in  an  American  case,  in 
which  he  held  that  there  is  a  right  of  contribution 
for  passengers"  baggage  {u).  His  decision  on  this 
question,  the  only  one  raised  on  appeal,  was  affirmed 
by  the  Circuit  Court  of  Appeals  (.r).  In  the  absence 
of  English  authorities,  the  following  lengthy  quotation 
from  his  judgment  may  be  justified. 

"Eeciprocitj/'  he  said,  "is  undoubtedly  the  ordinary  ride  in 


(s)  Most  of  the  foreign  codes  do  not 
allow  contribution  for  the  sacrifice  of 
goods,  unless  the  captain  has  given 
a  hill  of  lading  for  them  or  declared 
them  in  the  manifest,  and  one  of  the 
authorities  cited  by  Arnordd  is  sect. 
420  of  the  French  Code  de  Com- 
merce, which  contains  a  provision  to 
this  effect. 

{t)  A  case  occiuTed  recently  in 
"wbich  considerable  damage  was  done 
to  passengers'  effects  in  extingiush- 


ing  a  fire  on  board  a  steamer,  and 
the  damage  was  adjusted  as  general 
average,  assessed  ujjon  the  baggage 
of  the  other  passengers  in  the  bag- 
gage hold,  as  well  as  on  the  ship, 
cargo,  and  freight.  The  contribu- 
tions of  the  uninsured  passengers 
were,  however,  paid  by  the  ship- 
owners. 

(w)  Hej/e  V.  North  German  Lloyd 
(1887),  33  Fed.  E.  60. 

(x)  (1887),  36  Fed.  E.  705. 


SECT.   XIX A.]  passengers'  EFFECTS.  105 

general  average.     It  is,  however,  rather  a  circumstance  in  the  usual 
application  of  general  average  than  an  indispensable  part  of    the 
principle  upon  which  the  right  of  general  averag-e  is  founded.     That 
principle,  as  before  stated,  is  the  simple  equity  that  a  loss  volun- 
tarily incmu-ed  for  the  sake  of  all  shall  be  made  g-ood  by  the  contri- 
bution of  all.     This,  for  the  most  part,  involves  reciprocity  of  right 
and  obligation,  and  by  the  old  law  all  were  bound  to  contribute. 
But  special  reasons  might  exist  why  a  class  of  articles  that  share 
in  the  common  benefit  might  not  be  called  on  to  contribute,  and 
such  a  case  would  form  an  exception  merely  to  the  universality  of 
one  branch  of    the  rule,  without   providing    any  just    reason  why 
similar  articles  in  another  case  should  not  be  paid  for  when  they 
had  been  voluntarily  sacrificed  as  a  means  of  saving  all  the  rest. 
A  few  such  exceptions  are  Avell  established,  on  which  no  reciprocity 
exists.     Thus,  cargo  on  deck  must  contribute,  if  saved,  though  it 
may  have  no  claim  to  compensation,  if  jettisoned.     It  is  the  same 
with  goods  put  on  board  without  the  master's  knowledge,  and  without 
a  bill  of  lading.     ...    On  the  other  hand,  the  clothes  of  seamen, 
munitions  of  war,  and,  usually,  the  provisions  of  the  ship  for  use 
on  board  do  not  contribute,  though  they  are  paid  for,  if  sacrificed. 
The  reasons  assigned  for  excepting  seamen's  clothes  is,  not  only 
the  favour  accorded  to  seamen  by  the  modern  law  from  their  neces- 
sitous condition,  and  in  order  that  they  may  not  hesitate  in  sacri- 
ficing what  is  necessary  through  any  fear  of  personal  loss,  but  on 
account  of  their  necessary  exertion  in  connection  with  the  special 
peril.     Provisions  do  not  pay,  because  contribution  is  based  upon 
the  value  of  articles  at  the  close  of  the  voyage,  and  provisions  are 
for  consumption  during  the  voyage.     If,  therefore,  it  were  settled 
law  in  this  country  that  passengers'  baggage  should  not  contribute, 
that  would  not  necessarily  determine  that  such  articles  should  not 
be   contributed  for  when  sacrificed  for  the  common  safety.      The 
grounds  of  exemption  must  be  considered,  or  the  right  to  com- 
pensation be  determined  as  an  independent  question."     He  cited 
foreign  codes  to  prove  that  passengers  are  entitled  to  contribution 
for  their  baggage,  and  then  continued:    "This  right  seems  never 
to  have  been  anywhere  questioned,  and  it  is  plain  that  such  articles, 
when  sacrificed  for  the  rest,  are   within  the  principle  of  general 
average  as  much  as  any  other  property  on  board." 

He  also  came   to    the   conclusion   that    passengers' 
baggage  in  the  baggage  compartment  is  liable  to  con- 


106  SACRIFICES  OF  CARGO.  [cHAP,  II. 

tribute,  but  it  is  clear  that,  even  if  lie  had  formed  a 
different  opinion  on  that  part  of  the  case,  his  decision 
that  passengers'  baggage  must  be  contributed  for  would 
not  have  been  affected.  On  this  point  the  editors  submit 
that  his  judgment  is  correct. 

It  can  hardly  be  doubted  that  the  master  and  crew 
are  entitled  to  contribution  for  the  sacrifice  of  their 
effects,  and  tlieir  right  is  generally  recognized  by  the 
foreign  codes.  The  "reciprocity"  argument  has  little 
or  no  weight  in  their  case  ;  for  their  exemption  from 
contribution  may  not  only  be  explained  on  the  ground 
that  they  have  done  their  share  towards  the  preservation 
of  the  ship  by  their  personal  efforts  (^),  but  also  justified 
as  regards  the  wearing  apparel,  which  usually  consti- 
tutes the  whole  of  their  property,  on  the  ground  that  it 
must  be  considered  as  attached  to  the  person  (^).J 


freight 


Sacrifices  of  g  20.   To  Complete  this  portion  of  the  subject,  it  is 

necessarv  to  sav  a  few  words  concerning  sacrifices  of 
freight.  As  a  general  rule,  the  sacrifice  of  cargo  carries 
with  it  as  a  consequence  the  loss  of  the  shipowner's 
freio*ht.  It  mav  be  said  that  the  beneficial  interest  on 
every  package  of  cargo  on  board  a  ship  is  vested  partly 
in  the  shipowner,  in  respect  of  the  freight  on  it  for  which 
he  has  a  lien,  and  the  remainder  only  in  the  merchant, 
in  respect  of  the  surplus  of  its  value  beyond  the  freight. 
Each  party  is  of  course  equally  entitled  to  compensation 
for  what  he  loses  by  the  sacrifice  (a). 

(y)  See  infra,  p.  375 ;  per  Brown,  was  heated  and  could  not  be  carried 

D.    J.,    in    Heye    v.    North    Oerman  to  its  destination,  Bigham,  J.,   and 

Lloyd,  nupra.  the  Court  of  Appeal  held  that   the 

(2)  See  infra,  p.  378.  cons;equent  loss  of  freight  was  not  a 

(a)  When  there  had  been  no  sacri-  ge)i('ral    average    loss.      {Iredale   v. 

fice  of  cargo  for  the  general  safety,  China    Traders'   Lis.    Co.,   [1899]    2 

but  it  was  necessarily   sold  by  the  Q.  B.  3.56  ;  [1900]  2  Q.  B.  515.) 
master  at  a  port  of  refuge  because  it 


SECT.  XX.J  LOSS  OF  FREIGHT.  107 

It  has  been  sometimes  thought  that  as  what  is  in 
fact  sacrificed  by  a  jettison,  or  any  similar  general  aver- 
age act,  is  simply  so  much  specific  merchandise,  it  can 
never  be  allowable,  by  any  subdivision  of  this  sacrifice 
between  shipowner  in  respect  of  freight,  and  merchant 
in  respect  of  this  surplus  value,  to  allow  more  in  the 
aggregate  than  the  total  gross  value  of  the  cargo  ;  or,  to 
put  the  same  difficulty  in  another  form,  to  allow  that 
the  total  amount  made  good  for  cargo  destroyed,  added 
to  the  total  received  for  cargo  not  destroyed,  should 
exceed  what  the  total  would  have  been  had  there  been 
no  sacrifice.  This  certainly  seems  most  reasonable. 
And  yet  cases  do  arise  in  which  it  seems  impossible, 
without  injustice,  to  avoid  committing  this  seeming 
absurdity. 

In  the  case  of  Fletcher-  v.  Alexander  [b),  for  example, 
though  the  point  does  not  appear  in  the  reports,  the 
facts  were  these.  The  ship,  bound  from  Liverpool  to 
Calcutta,  grounded  shortly  after  sailing,  and  was  only 
got  off  by  throwing  overboard  substantially  her  entire 
cargo  of  salt,  after  which  she  returned  to  Liverpool  for 
repair.  One  half  the  freight  on  the  salt  had  been  abso- 
lutely prepaid.  The  shipowner,  being  discharged  from 
his  engagement  with  the  charterer  by  the  loss  of  the  salt, 
took  on  board  a  second  cargo  of  salt,  belonging  to  another 
shipper,  and  carried  it  to  Calcutta.  The  result  was,  that 
the  owner  of  the  ship  made  a  clear  profit ;  but  the  owner 
of  the  salt,  in  addition  to  losing  the  cost  price  of  his  salt, 
lost  the  half-freight  he  had  j^repaid  on  it.  This  half- 
freight  was  allowed  as  general  average ;  and,  although 
the  adjustment  was  in  other  respects  disputed,  and  the 
whole  matter  was  adjudicated  on  in  the  courts,  this 
allowance  of  freight  was  not  questioned.     Here  was  a 

(b)  (1868),  L.  E.  3  C.  P.  375. 


108  SACRIFICES  OF  CARGO.  [CHAP.  II. 

case  in  which  the  shipowner's  gain  of  freight  could  not 
be  brought  in,  in  diminution  of  the  merchant's  loss ;  so 
that,  in  the  aggregate,  what  was  allowed  for  the  jettison 
of  tlie  salt  was  more  than  the  real  value  of  the  salt  at 
Liverpool,  the  place  where  the  values  were  to  be  taken, 
and  more  than  it  would  have  been  but  for  the  special 
terms  of  the  charter-party. 

Suppose,  again,  that  the  cargo  has  been  so  damaged 
by  water  thrown  in  to  extinguish  a  fire  that  it  cannot  be 
carried  on  to  its  destination,  and,  therefore,  is  sold  at  an 
intermediate  port,  it  may  sell  there  at  a  profit  as  compared 
with  its  value  at  its  destination  after  deducting  freight ; 
indeed,  this  frequenth'  happens  with  cargo  of  small 
value,  such  as  coals,  where  the  freight  on  a  long  vo^-age 
constitutes  the  chief  part  of  its  value.  The  merchant, 
therefore,  makes  a  large  profit.  The  shipowner,  how- 
ever, loses  his  freight ;  and  this  he  is  clearly  entitled  to 
in  general  average.  Here,  again,  we  have  the  same 
result.  What  is  allowed  for  cargo  sacrificed,  added  to 
what  is  received  for  cargo  not  sacrificed,  amounts  to  a 
larger  sum  than  would  have  been  realized,  for  cargo 
and  freight  together,  if  there  had  been  no  sacrifice  (c). 

Aofain,  there  mav  be  cases  in  which,  for  some  spe- 
cial  reason  affecting  either  the  cargo-owner  alone  or  the 
shipowner  alone,  one  or  other  of  them  is  disentitled  to 
recover  his  loss  by  jettison  or  sacrifice,  while  the  other 
is  entitled.  In  the  case,  for  instance,  of  fire  resulting 
from  spontaneous  combustion,  supposing  it  could  be 
proved  that  this  was  the  result  of  [some  negligence  or 
wrong-doing  on  the  part  of  the  shipper  in  putting  the 
cargo  on  board  in  a  state  of  unfitness  for  shipment],  so 
that  the  shipper  could  be  pronounced  in  fault,  he  certainly 

(c)  See  Pirie  t.  Middle  Dock  Co.  (1881),  4  Asp.  Mar.  Law  Ca.  388;  ante, 
p.  88. 


SECT.  XX.J  LOSS  OF  FREIGHT.  109 

could  make  no  claim  for  damage  done  in  extinguishing 
it((i);  but  an  innocent  shipowner  would  nevertheless  be 
entitled  to  compensation  for  any  loss  of  freight  he  might 
sustain  in  consequence. 

The  loss  of  freight  incidental  to  a  sacrifice  of  cargo 
must  be  treated  then  as  a  substantial  claim  by  itself,  and 
be  dealt  with  on  its  merits  accordin";  to  the  terms  of  the 
charter ;  and  it  may  be  that  the  charterer,  as  well  as  the 
shipowne)',  has  a  distinct  claim  for  his  loss,  as,  for 
example,  when  the  ship  has  been  sublet  at  an  advanc(;d 
rate.  This,  however,  will  be  more  fitly  discussed  when 
we  come  to  consider  the  mode  of  computing  the  amount 
allowable  for  sacrifices  of  cargo. 

{d)  See  Greeashithh  v.  Stephens,  [1908]  1  K.  B.  51  (C.  A.);  [1908]  A.  C. 
431  ;  cvde,  p.  81. 


no 


principles. 


CHAPTER  III. 

SACRIFICES    OF    SHIP. 

SECT.  PAGE 

21.  General  principles 110 

22.  Jettison  of  ship's  materials    112 

23.  Cuttinc/  away  cables   112 

24.  Carrying  press  of  sail    113 

25.  Damage  by  fighting    116 

26.  Materials  iised  for  fuel  for  engines 117 

27.  State  of  wrecJ:     118 

28.  Miscellaneous  cases  :  practice 131 

29.  Jury  rig  and  analogous  cases    134 

30.  Temporary  repair  at  port  of  refuge , .  137 

31 .  Damage  done  to  ship  in  getting  her  afloat    138 

32.  Sacrifice  merged  in  subsequent  loss 139 

33.  Damage  by  tug  in  rendering  salvage  service     141 

34.  Damage  by  using  engines  to  force  steamer  off  ground 141 

35.  Sails  cut  away  to  save  a  spar    143 

36.  Voluntary  stranding 143 


General  Princijjles. 

General  §  21.  There   is   no    distinction   in  principle  between   a 

sacrifice  of  tlie  cargo  and  a  sacrifice  of  anything  belong- 
ing to  the  ship :  for  there  is  nothing  in  the  contract  of 
affreightment  which  implies  an  obligation  on  the  part  of 
the  shipowner  or  his  servant  to  destroy,  or  expose  to 
necessary  destruction,  any  part  of  his  ship.  Accordingly 
all  the  old  sea-laws,  and  the  universal  practice  of  all 
maritime  countries,  place  the  cutting  away  of  a  mast  or 
the  slipping  of  a  cable  on  the  same  footing  as  the  jettison 
of  cargo.  There  is,  however,  this  difference  between 
ship  and  cargo :  that  the  cargo  ought  never,  under  those 


SECT.  XXI.  J  GENERAL  PRIXCirLES.  Ill 

ordinary  circumstances  which  alone  are  provided  for  by 
the  contract  of  affreightment,  to  be  exposed  to  risk; 
that  is  to  sa\%  to  a  risk  bevond  that  which  is  common  to 
the  entire  adventure ;  and,  therefore,  in  case  of  exposure 
to  any  risk  greater  than  ordinary,  as  by  uncovering  tlie 
hatches  during  a  gale  to  throw  cargo  overboard,  such 
exposure,  if  followed  by  loss  or  damage,  is  treated  as  a 
sacrifice.  Certain  parts  of  the  ship  and  her  tackle  or 
machinery,  on  the  other  hand,  are  always,  or  may  be 
under  ordinary  circumstances  and  still  more  in  a  gale, 
exposed  to  a  risk  greater  than  ordinary ;  as  in  the  case 
of  sails  and  tackling,  which  may  be  liable  to  greater 
risk  of  destruction  in  a  gale  than  in  fair  weather,  not 
merely  from  the  stress  of  the  wind,  but  on  account  of 
the  greater  necessity  of  carrying  sail  on  the  ship,  e.g.^  to 
avoid  a  lee-shore.  Some  degree  of  exposure  to  extra- 
ordinary risk,  therefore,  on  tlic  part  of  the  ship's  tackling 
and  machinery,  ma}^  naturally  be  regarded  as  no  more 
than  the  ship's  ordinary  duty,  and  not  amounting  to  a 
sacrifice  for  which  compensation  should  be  made. 

The  basis  of  arrangement  in  this  chapter,  conform- 
ably to  the  principles  laid  down  at  the  commencement  of 
Chapter  II.,  but  under  greater  difficulties  from  tlie  circum- 
stance that  we  are  here  less  abundantly  supplied  with  Icfal 
decisions,  is,  to  take  each  branch  of  the  subject  separately, 
to  begin  with  those  which  liave  been  dealt  with  in  our  courts, 
and  to  marshal  these  in  the  order  of  antiquity  amongst  the 
decisions.  When  the  authoritative  decisions,  of  which 
the  latest  and  far  most  valuable  are  those  which  lay  down 
rules  for  what  is  technicalh'  called  a  "state  of  wreck," 
are  thus  exhausted,  we  are  left  to  custom  or  the  practice 
of  adjusters,  which  is  here  set  down,  not  as  authoritative, 
but  as  a  guide  for  those  who  have  nothing  better  to  follow. 
Thus  we  have  as  yet  no  better  guide  as  to  the  important 


112  SACRIFICES  OF  SHIP.  [CHAP.  111. 

question  of  voluntary  stranding,  a  question  liere  discussed 
somewhat  full\',  from  a  conviction  that  it  nmst  before 
h)nff  be  brought  before  the  courts. 

Jettison  of  §  22.  It  lias  aU'eady  been  ijointed  out  tliat  a  iettison 

ship's  stores.  ^  .  . 

Pricey.  Noble,  of  ship's  storcs-iu  the  casc  tried,  the  guns,  two  anchors, 
two  chains,  and  other  stores  from  the  middle  deck — is 
treated  as  on  the  same  footing  with  a  jettison  of  cargo  (a). 

If  properly  The  practicc  of  adjusters  here  introduces  a  distinc- 

on  deck. 

lion  analogous  to  that  of  deck  and  under-deck  cargo. 
Many  ships  are  lumbered  with  all  kinds  of  useless 
articles  on  deck,  which  increase  the  risk,  and  are  sure  to 
be  tlnown  overboard  on  the  first  approach  of  danger. 
To  guard  against  the  abuse  of  this  practice,  the  rule  in 
this  country,  as  in  Germany  and  most  other  states,  is, 
that  no  jettison  of  ship's  materials  off  the  upper  deck  is 
treated  as  general  average,  unless  it  be  of  such  articles  as 
are  necessary  for  the  navigation  of  the  shij),  and  there- 
fore are  carried  on  deck  in  conformity  with  the  custom 
of  the  trade.  Boats,  studding-sails  and  their  gear,  spare 
spars,  anchors,  are  examples  of  articles  properly  carried 
on  deck  :  water-casks,  provisions,  spare  sails,  cables, 
ouiiht  not  to  he.  Hawsers  in  coastinjj-  trades  or  for 
short  voyages  may  properly  be  on  deck,  though  for  a 
long  voyage  they  should  be  got  below  as  soon  as  they 
are  dry. 


Cutting  away  K  23.   The  ship  Aryo,  bound   for   Sunderland,  was, 

a  cable.  * 

mrkhi/v.        whilst  entering  that   port,   caught    by  a  sudden  squall, 

>csf/)aie.        ^y\^\^:\y  rendered  it  necessary  to  let  go  the  anchor.     She 

was  fastened  with  a  warp  to  the  South  Pier,  in  order  to 

secure  her  from  the  storm  ;  but  the  warp  soon  parted. 


{n)  Price  v.  Nolle.  (1811),  4  Taunt.  123,  supra,  p.  57. 


SECT.  XXIII.J  CUTTING  AWAY  CABLES.  11'3 

More  cable  was  then  paid  away,  and  the  ship  was  per- 
mitted to  drive  alongside  the  North  Pier,  to  which  she 
was  made  fast  with  haw^ser  ends  and  towing"  lines,  which 
were  proper  ropes,  and  such  as  were  usually  provided 
and  employed  for  that  purpose.  Fearing  that  another 
ship  would  be  adrift  and  come  down  upon  The  Argo^  the 
master  cut  the  cable,  and  therewith  moored  The  Argo  to 
the  pier ;  and  this  he  did  for  the  preservation  of  the  ship 
and  cargo.  Whilst  thev  were  so  fasteninc:  her  with  the 
cable,  the  other  ropes,  through  the  violence  of  the  storm 
and  by  another  ship  driving  down  upon  Tiie  Argo,  broke. 
On  these  facts,  the  owner  of  the  ship  claimed  as 
general  average  the  value  of  the  cable  thus  cut,  and  also 
that  of  the  hawsers  and  towing  lines.  At  the  trial,  the 
counsel  for  the  plaintiff  withdrew  the  demand  in  respect 
of   the  damage  to  the  hawser-ends    and  towin":   lines, 

O  0  7 

admitting  that  these  were  not  claimable,  as  having  only  No  claim  for 
been  applied  to  the  ordinary  purposes  for  which  such  loTwoTdi-'^ 
things  are  provided;  but  claimed  tlie  cable,  which  had  '''*'■>' "^^^• 
been  "appropriated  to  a  different  use  from  what  it  w^as 
originally  intended  for,   and  which  contributed  to  the 
preservation   of  the  ship  and  cargo.''     This  claim  was 
admitted  by  the  court.     Lord  Kenyon,  C.  J.,  said :  "  All 
ordinary  loss  and  damage  sustained  by  the  sliip,  happen- 
ing immediately  from  the  storm  or  perils  of  the  seas, 
must  be  borne  by  the  shipowners ;  but  all  those  articles  Oi.iy  for 
which  were  made  use  of  by  the  master  and  crew  upon  n^Zion   ^ 
the  particular  emergency,  and  out  of  the  ordinary  course,  ouTof3 
for  the   benefit    of   the  Vv^hole   concern,    and    the   other ''''■^"■''''''• 
expenses  incurred,  nmst  be  paid  proj)ortionably  by  the 
defendant  as  general  average  "  {b). 

§  24.   The  Nancy  had  been  captured  by  a  French  cor\nr,tonv. 

Roberts. 
(/>)  BirMcy  \.  Presgrave  (1801),  1  East,  220. 


114 


SACRIFICES  OF  SHIP. 


[CflAP.  III. 


Damage  by 
caiTying 
press  of  sail 
to  escape  a 
privateer. 


Modem 
reasons  for 
this  rule. 


German 
Code:  reasons 
given  at 
conferences. 


privateer,  but  as  it  blew  a  gale  and  the  sea  ran  high  the 
Frenchman  could  not  board  her  ;  whereupon  the  master 
of  The  Nancy,  in  order  to  make  her  escape,  carried  an 
unusual  spread  of  canvas,  in  consequence  of  which  she 
was  much  strained,  opened  most  of  her  seams,  and 
carried  awa}^  the  head  of  her  mainmast ;  but  finally 
succeeded  in  getting  clear  away.  The  owner  of  The 
Nancij  sued  his  underwriter  on  ship  for  this  damage,  as 
particular  average.  The  underwriter  contended  that  he 
was  only  liable  for  his  share,  treating  it  as  a  general 
average,  as  a  loss  occasioned  bv  an  exertion  to  save  the 
whole  concern  ;  and  BirJdcij  v.  Prcsgmve  (c)  was  cited  in 
support  of  this  view.  But  Sir  J.  Mansfield,  C.  J.,  said: 
"In  the  case  referred  to,  there  was  an  article  given  up 
for  the  benefit  of  the  wdiole  concern :  a  cable  w^as  sacri- 
ficed. The  language  of  Lawrence,  J.,  is,  that  all  loss 
which  arises  in  consequence  of  extraordinary  sacrifices 
or  expenses  incurred  for  the  preservation  of  the  ship  and 
cargo  comes  wdtliin  the  description  of  general  average. 
This  is  only  a  common  sea-risk.  If  the  weather  had 
been  rather  better,  or  the  ship  stronger,  nothing  might 
have  happened  '-  {d). 

Damage  by  carrying  a  press  of  sail,  whether  as  in 
this  case,  or  to  beat  off  a  lee-shore  during  a  gale,  is  in 
some  countries  treated  as  general  average.  At  the 
conferences  which  preceded  the  framing  of  the  York 
and  Antwerp  rules,  this  opinion  was  condemned  by 
large  majorities,  and  it  w^as  provided  by  Rule  6  that 
such  damage  is  not  to  be  so  treated.  This  is  also  the 
rule  of  the  German  Code  {e).     The  grounds  of  its  rejec- 

(c)  1  East,  220.  principle  was  upheld  in  France  by 

{(1)  Covington  v.  Fioherts  (180G),   2  the  Cour  Eoyale  de  Eennes  in  1822 

Bos.  &  Pul.  (N.  E.)  378.  (see  Arnould,  8th  edit.,  §  934),  but 

(e)  Art.    707,  No.    3.      The   same  it  has  more  recently  been  held  that 


SECT.  XXIV.I  CARRYING  PRESS  OF  SAIL.  li'^ 

tion  which,  according  to  Uhich,  prevailed  with  the 
conference,  were,  that  the  shipowner  was  bound  under 
his  contract  to  furnish  the  cargo  with  all  the  ordinary 
means  of  reaching  its  destination  which  are  supplied  by 
the  ship  and  her  tacklhig,  each  part  used  in  its  appro- 
priate way,  whether  it  be  with  greater  or  less  strain  put 
upon  it ;  and  this  includes,  upon  occasion,  the  carrying 
a   press    of   sail(/).     It    has  been   likewise,   for  many  Practice  in 

1  .     "    .         ,   .  ,      ,  IT'  England. 

years,  the  practice  in  this  country  to  exclude  such  claims 
from  general  average ;  and  this  is  ordinarily  defended 
on  grounds  substantially  the  same  as  those  above  set 
forth.  The  sails  are  not  intended  for  fair  weather  only, 
but  to  be  set  whenever  required :  if  a  press  of  sail  is 
necessary,  not  merely  to  expedite  the  vo3^age,  but  to 
avoid  some  danger,  this  is  mevely  performing  an  ordinary 
service  at  a  time  when  not  to  do  so  would  be  peculiarly 
cul23able. 

If  indeed  the  ship  is  in  a  position  in  which   the  Sail  set  to 

.  force  ship  off 

setting  of  sails  at  all  must  be  regarded  as  something  ground. 
unusual,  and  which  would  be  improper  but  for  the 
emergency,  the  case  may  perhajjs  be  otherwise.  When 
a  ship  is  aground,  for  example,  and  at  tide  time  sails  are 
set  on  her,  in  the  hope  of  forcing  her  off  the  bank,  by 
which  means  she  is  got  atloat,  but  the  sails  are  blown  to 
pieces,  this  loss  is  in  practice  treated  as  a  general 
average.  On  account  of  the  greater  resistance  offered 
by  a  ship  that  is  aground,  this  may  be  considered  as  an 
abusing  of  the  sails,  or  applying  them  to  a  purpose  for 
which  they  were  not   intended  f,^).     But   a  case  which  Sail  set  to 

prevent  ship 
running 

damage  by  carrying  a  press  of  sail,  {(j)  Baily,  General  Average,  p.  ~o.  aground. 

or   by    "  forcement   de  vapeur "    to      See  The  Bona,  [189o]  P.  125,   infra, 

escape  shipwreck,  is  general  average.      p.  142  ;  see  also  No.  6  of  the  York- 

{See  post,  App.  I.,  p.  513.)  Antwerp  Rules. 


(/)  XJlrich,  Grosse  Ilavorei,  p.  41, 


1  2 


116 


SACRIFICES  OF  SHIP 


[chap.  III. 


Damage  by 
fighting. 

Taylor  v. 
Curtis. 


comes  very  near  this  is  not  in  practice  so  treated :  that 
is  to  say,  when  a  ship  is  drifting  ashore,  and  only  saved 
by  hoisting  a  sail,  with  the  full  knowledge  that  it  must 
blow  to  pieces  in  a  minute  or  two,  but  the  momentary 
resistance  it  offers  to  the  wind  may,  and  does,  bring  her 
head  round  and  save  the  ship.  Not  to  allow  the  sail 
under  such  circumstances  seems  to  be  a  hardship ;  but  it 
is  only  the  consistent  application  of  the  principle  Xierv 
laid  do-^ni  {h). 

§  25.  The  ship  Hihernia,  on  her  voyage  to  St. 
Thomas,  was  attacked  by  a  privateer.  She  resisted, 
and  a  severe  engagement  ensued.  The  privateer  was 
beaten  off,  and  The  Hibcrnia  delivered  her  cargo  safe 
to  the  consignees.  A  claim  as  general  average  was  made 
for  damage  sustained  in  her  hull  and  rigging  by  the 
enemy's  shot,  for  the  cost  of  curing  the  seamen's  wounds, 
and  for  gunpowder  and  shot  expended.  Gibbs,  C.  J., 
decided  against  the  claim.  ''  I  cannot,"  he  said,  ''  dis- 
tinguish this  from  the  case  of  a  ship  carrying  a  press  of 
sail  to  escape  from  her  enemy.  That  is  done  voluntarily 
for  the  preservation  of  all ;  but  it  has  been  held  that  a  loss 
arising  from  a  hazard  so  incurred  is  not  the  subject  of 
general  average."  The  learned  judge  intimated,  how- 
ever, a  strong  opinion  that  some  reward  should  be  given 
for  a  gallant  resistance,  otherwise  such  resistances  would 
not  be  made  {i).     This  case  was  carried  up  to  the  full 


(/i)  I  have,  however  (said  Mr. 
Lowndes),  known  cases  in  which  sails 
so  destroyed  have  been  treated  as 
general  average ;  but  I  believe  the 
pi-actice,  on  the  whole,  is  the  other 
way ;  and  this  is  certainly  more  con- 
sistent wdth  CoviiKjton  v.  Roberts. 

(i)  Taylor  v.  Curtis  {ISlo),  4  Camp. 
337.     In  1  Holt's  N.  P.  at  p.  193, 


this  judgment  is  given  in  somewhat 
different  language.  "  I  do  not  think 
this  is  general  average.  It  was  the 
duty  of  the  sailors  to  defend  the  ship 
from  captui'e  in  proportion  to  their 
means,  and  within  measures  of  dis- 
cretion. By  so  doing  all  parties  have 
benefited.  But  in  what  respect  have 
the  captain  and  crew  exceeded  the 


SECT.  XXV.]  DAMAGE  BY  FIGHTING.  H*^ 

court,  but  the  decision  at  Nisi  Prius  was  confirmed. 
Gribbs,  C.  J.,  said  : — "  The  measure  of  resisting  the 
privateer  was  for  tlie  general  benefit,  but  it  was  part  of 
the  adventure.  No  particular  part  of  the  property  was 
voluntarily  sacrificed  for  the  })rotection  of  the  rest.  The 
losses  fell  where  the  fortune  of  war  cast  them,  and 
there  it  seems  to  me  they  ought  to  rest "  (k). 

This  decision  has  been  much  questioned.     Damage,  Whether 

1  .  right  on 

says  Benecke,  which  is  the  consequence  oi  a  determma-  principle. 
tion  to  resist,  maj^  be  looked  upon  as  damage  voluntarily 
sustained  ;  the  defence  is  intended  for  the  preservation 
of  the  whole  (/).  The  argument  that  it  was  the  duty  of 
the  crew  to  fight,  says  Phillips,  proves  too  much ;  it  is 
their  dutv  to  cut  awav  a  mast  in  case  of  need,  or  to 
make  any  sacrifice  that  may  be  requisite  for  the  safety 
of  ship  and  cargo  (in).  It  is,  however,  not  so  easy  to 
resist  the  argument  from  analogy  with  carr3^ing  a  press 
of  sail.  If  a  ship  sails  on  lier  voyage  provided  with  guns 
and  ammunition  sufficient  to  resist  an  enemy,  these  are 
provided  for  that  purpose  and  no  other ;  and  the  use  or 
expenditure  of  them,  more  or  less,  for  their  appropriate 
purpose,  cannot  be  regarded  as  the  subject  of  general 
average  (n).  The  ship's  being  so  equipped,  again,  is  surely 
a  notice  to  the  crew  that  they  are  hired  to  fight  in  case 
of  need,  and  not  merely  to  navigate  the  ship. 

vi  26.  Spare  spars,  planks,  and  other  ship's  materials  Materials 

'^  ^  ^        ^  ^  '  11.,.  used  for  fuel. 

used  upon  emergency  for  fuel  for  the  ship  s  engmes,  to 
avert  some  danger,  and  when  there  has  been  no  original 

line   of  their  proper   duty?      What  (?i)  The  expenditure  of  ammunition 

sacrifice  have  they  made  which  they  under  such  circumstances  is  analo- 

were  not  bound  to  make  ?"  gous  to  the  use,  during  bad  weather, 

(A:)  ,S'.  C.  (1816),  6  Taunt.  608.  of  storm  oil  specially  kept  on  board 

(/)  Benecke,  p.  231.  for  that  purpose.     See  below,  p.  135, 

(to)  Phillips,  §  1310. 


118 


SACRIFICES  OF  SHIP. 


[chap.  III. 


insufficiency  in  the  supply  of   coal,  are  the  subject  of 
general  average  (o). 


State  of 
wreck. 


Practice 
anterior  to 
decisions  of 
our  courts. 


State  of  Wreck. 

§  27.  Another  class  of  cases,  which  has  given  rise  to 
much  difference  of  opinion,  consists  in  the  cutting  away 
of  ship's  materials  when  they  are  in  what  is  called  a 
state  of  wreck. 

AVhen  a  ship's  mast  has  been  carried  away,  and  is 
held  fast  alongside,  with  the  yards,  sails,  and  rigging, 
and  this  wreck,  beating  against  the  ship's  side,  threatens 
to  stave  it  in,  and  thus  endangers  ship  and  cargo,  suppos- 
ing that  in  such  a  case  the  master,  instead  of  waiting  to 
try  how  much  he  can  save  of  this  "  wreck,"  for  the 
common  safety  cuts  it  all  away,  is  any  part  of  this  loss 
properly  the  subject  of  general  average  ? 

Emerigon  (j'J'),  and  other  foreign  writers  (^),  hold 
that  an  allowance  should  in  such  cases  be  made,  as 
creneral  averao^e,  for  so  much  as  the  articles  thus  sacri- 
ficed,  in  their  actual  condition,  may  reasonably  be  taken 
to  be  worth.  And  this  is  the  rule  in  many  foreign 
countries.  In  this  country  for  many  years  the  contrary 
practice  has  prevailed  amongst  adjusters.     Stevens  says 


(o)  Ante,  §  14. 

{p)  Assurances,  c.  12,  §  41 ;  p.  422 
of  Boulay-Paty's  edit. 

(2)  PhiUips  (§  1271),  says: 

"  Mr.  Benecke  says  :  '  If  the  mas- 
ter's situation  was  such  that,  but  for 
a  voluntary  destruction  of  a  part  of 
the  vessel  or  her  furniture,  the  whole 
would  certainly  and  unavoidably 
have  been  lost,  he  could  not  claim 
restitution,  because  a  thing  cannot 
be  said  to  have  been  sacrificed  which 
had  already  ceased  to  have  any  value.' 
The  correctness  of  this  position  admits 


of  great  doubt;  it  is  inconsistent  with 
cases  of  undisputed  claim  for  contri- 
bution, as,  for  instance,  composition 
with  pirates.  It  does  not  appear  why 
the  greatness  and  imminent  threaten- 
ing  of  the  peril  should  be  a  reason 
against  contribution  for  the  value  of 
the  part  that  is  sacrificed  to  avoid  it. 
On  the  contrary,  the  more  imminent 
the  peril  is,  the  less  questionable 
seems  to  be  the  claim  for  contribu- 
tion on  account  of  a  sacrifice  made  to 
avoid  it." 


SECT.  XXVII.]  STATE  OF  WRECK.  119 

the  reason  is,  that  the  situation  in  which  these  articles 
are  placed  renders  them  of  no  value  (r) :  to  which 
Benecke  objects,  then  if  in  any  case  it  can  be  proved 
that  they  have  some  value  when  sacrificed,  as  for  example 
if  the  ship  was  near  a  port,  or  if  for  any  other  reason 
there  was  a  fair  prospect  of  saving  the  sails  and  yards, 
were  it  only  safe  to  wait  till  the  sea  should  go  down,  in 
that  case  an  allowance  ought  to  be  made  (-s-). 

On  this  question  there  have  been  in  our  courts  the 
following  dicta  and  decisions : — 

In  Johnson  v.  Chamnan,  a  case  already  referred  to  (7),  Johmon  v. 

TTx'-n  T        •  1        Chapman. 

this  question  was  touched  upon  by  Willcs,  J.,  m  the 
following  words  : — 

"  All  the  writers  in  this  country  and  abroad  appear  to  be  agreed   Willcs,  J. 
that  the  question  is,  whether  there  is  a  common  danger  and  a  common 
sacrifice.     They  are  not  all  agreed,  it  must  be  admitted,  upon  the 
application  in  practice  of  these  rules.     But  there  is  one  case  upon 
which  our  average  staters  appear  to  be  agreed,  that  is  to  say,  if  a 
mast  were  sprung  and  a  part  of  it  were  to  go  overboard  with  a 
quantity  of    spars  and    sails  attached    to  it   hanging  on  by  a  stay 
which  must  give  way  in  a  minute  or  two,  whilst  in  the  meantime, 
by  battering  against  the  side  of  the  vessel,  it  adds  to  the  danger, 
and  if  the  stay  were  cut  to  let  it  go  at  once,  it  would  be  very  difficult 
to  say  that  that  was  anything  more  than  wreck.     A  lawyer  could  Not  all  ciun- 
not  lay  it  down  as  a  matter  of  pure  law  that  all  cumber  cut  loose  ig^^eck"^-^^^ 
is  wreck.     But  what  I  say  is,  if  it  was  virtually  lost,  if  not  recover-  only  that 

.  11-1  virtually  lost. 

able,  if  the  act  of  cuttmg  the  rope  was  only  hastening  the  moment 
at  which  it  would  be  lost,  you  would  properly  call  that  wreck,  and 
you  would  not  say  it  was  general  average.  The  reason  given  is, 
because  you  cannot  keep  it.  There  is  no  intentional  sacrifice  in 
cutting  it  away.  You  must  lose  it,  and  the  losing  it  a  minute  or 
two  sooner  can  make  all  the  difference  of  its  doing  great  injury  or 
not;  but  you  cannot  help  losing  it. 

(r)  Stevens  on  Average,  c.  1,  §  1,  of  danger"  must,  since  the  case  of 

art.  6.  Jvhiison  v.  (Jhapman,  be  dismissed  as 

(s)  Benecke,  Ins.  p.  185.    A  theory  untenable, 

set    up    by  Baily  in    his    book   on  {t)  Ante,  §  11,  p.  78. 
general  average,  touching  the  "cause 


120  SACRIFICES  OF  SHIP.  [CHAP.  III. 

"  But  if,  instead  of  cutting-  away  "wliat  is  virtually  lost  only,  you 
cut  away  a  portion  of  what  is  still  on  board  and  safe,  except  for  the 
common  danger — for  instance,  a  mast  or  bowsprit,  for  the  purpose  of 
facilitating-  the  getting  rid  of  the  wreck  which  is  only  encumbering 
the  vessel — if  you  do  that,  you  ought  to  receive  average  in  respect 
of  the  portion  3-ou  so  cut  away,  because  that  you  do  sacrifice.  It 
may  be  it  is  exceedingly  difficult  in  some  cases — one  can  conceive  it 
must  be  so — for  average  staters  consistentlj'^  to  apply  the  principle. 
But  the  principle  appears  to  be  clear  that  if  the  danger  is  common 
and  the  thing  is  voluntarily  sacrificed,  it  is  contributed  for  rate- 
ably  "(w). 

Two  cases  have  been  tried  in  our  courts,  in  both  of 
which  the  attempt  was  made  to  exclude  from  general 
averaw-e  the  value  of  a  mast  cut  awav  while  still  in  situ, 
on  the  ground  that  by  reason  of  previous  damage  to  it 
or  its  supports  the  mast  had  been  rendered  of  no  value 
and  virtually  a  wreck. 
Corryv.  The  first  of  these,    Corn/  v.  Coidtliardiv).  is  unfor- 

tunately  not  reported,  but  from  the  references  to  it  in 
the  subsequent  case  of  Shepherd  v.  Kottgen  {x)  we  may 
gather  that  the  mast,  an  iron  one,  having  become  loose, 
the  master,  fearing  that  if  it  broke  it  would  go  through 
the  bottom  of  the  ship,  cut  it  away.  This  was  done  in 
good  faith  and  justifiably,  though  it  appeared  afterwards 
that  the  master's  fear  was  unfounded.  The  question 
having  been  raised  whether  this  was  general  average, 
the  judge,  Cleasby,  B.,  directed  the  jury  that  the  ques- 
tion turned  on  whether,  "if  the  weather  had  moderated, 
the  mast  could  possibly  have  been  saved."  The  jury 
found  for  the  plaintiff,  that  is,  in  favour  of  general 
average.  The  case  was  carried  up  to  the  Court  of 
Appeal,  on  the  question  of  misdirection  :  but  the  court 

(«)  Johnson  v.  Chapman  (1865),  19  1876,  and  iu  the  Court  of  Appeal, 

C.  B.  (N.  S.)  563,  at  p.  582  ;  35  L.  J.  Jan.  17,  1877. 
(C.  P.)  23,  at  p.  28.  {x)  Shepherd  v.  Kottgen  (1877),  2 

iv)  Heard  in  Exch.  Div.,  Dec.  21,  C.  P.  D.  578,  at  p.  583. 


SECT.  XXVII.]  STATE  OF  WRECK.  1^1 

unanimously  pronounced  that  the  question  had  been 
rightly  put  to  the  jury.  (Jockburn,  L.  C.  J.,  said: 
''  It  is  not  necessary  that  the  judgment  of  the  master 
should  be  borne  out  by  the  facts  when  they  come  to  be 
examined  into  :  it  is  enough  if  he  exercise  his  judgment 
under  all  the  circumstances.  He  must  exercise  his  judg- 
ment." Erett,  L.  J.,  said:  "You  do  not  mean  to  say 
that  it  w^as  so  valueless  that  a  man,  in  a  cahn,  would 
have  thrown  it  overboard :  it  was  worth  money  .... 
Wreck  means  rubbish,  I  suppose  ''  (y). 

In  ShepJicrd  Y.  Kottgen^  the  barque  llollo  met  with  a  Shepherd  w. 
heavy  gale,  and  portions  of  the  rigging  gave  way,  owing 
to  which  the  mainmast  began  to  lurch  violently,  so  that 
the  crew  feared  it  would  rip  up  the  decks  and  endanger 
the  ship's  safety.  To  prevent  this,  the  master,  after 
vainly  attempting  to  secure  the  mast,  cut  it  away(.e'). 
At  the  trial,  Manisty,  J.,  ^\\i  the  question  to  the  jury  in  AtNisiPrius. 
the  following  form  :   "  Are  you  of  opinion  that  that  mast     ""^^  ' 

(?/)    Shepherd   v.    Kottgen    (1877), '  the  crew  to  repair  the  rigging.     The 

2  C.  P.  D.  578,  at  p.  583.  fourth  stated  that  there  was  no  chance 

(z)  Four  experts  gave  evidence  as  of  saving  the  mast.     (At  p.  585.) 

to  the  probable  result  of  the  state  of  "  The  substance  of  the  e%-idence," 

things.     The  first  stated  that  in  his  said  Grove,  J.,  "  appears  to  us  to  be  : 

judgment  it  was  impossible  to  repair  first,  that  if  the  storm  had  continued, 

the  rigging  so  as  to  secure  the  mast,  of  which  there  was  great  probability, 

and  that  by  cutting  away  the  mast  the  mast  would  not  have  broken,  but 

the  captain  accelerated  its  going  over-  would  have  gone  wholly  overboard, 

board,  ''  perhaps  to  the  amount  of  a  tearing  up  the  ship,  and  that  in  all 

minute  or  two,  not  longer  than  that."  probability  the  whole  would    have 

The  second  -stated  that  it  was  ini-  been  lost ;    secondly,  that  the  mast 

possible  to  save  the  mast  after  the  might  possibly  have  been  saved    if 

rigging  was  gone.     The  third  stated  the  weather  had  moderated  quickl3% 

that  with  the  rigging  gone  the  mast  but  that  this  was  very  improbable  ; 

was  "  as  good  as  a  wreck  "  ;  that  it  thirdly,  that  the  mast  was  cut  away, 

was   impossible   to  save  it ;    that  if  not  as  a  mere  incumbrance,   like  a 

the    weather    did    not    moderate    it  mast  overboard  and  attached  to  the 

might  be  looked  upon  as  likely  to  go  ship  by  rigging,  but  for  the  purpose 

over  at  any  moment,  and  that  there  of  preventing  the  tearing  up  the  ship 

was  no   reasonable   prospect  of  the  and  sacrificing  the  adventure."     (At 

weather  moderating  so  as  to  enable  p.  581.) 


122  SACRIFICES  OF  SHIP.  [CIIAP.  III. 

was  virtually  a  wreck  and  valueless  and  gone  at  the  time 
it  went  over?"  The  jury  found  that  the  mast  was  a 
wreck ;  and,  to  a  further  question  from  the  learned 
judge,  "  Do  you  tind  whether  it  w^as  hopelessly  lost?" 
they  answered  "  Yes,"  On  this  the  judgment  Avas 
given  against  general  average. 
In  Divisional  The  quostioii  going  up  to  the  Divisional  Court,  the 

judges  (Grove  and  Lopes,  JJ.)  reversed  the  decision ; 
on  the  ground,  first,  that  the  question  ought  to  have 
been  put  to  the  jur}^  in  the  same  form  as  in  Corrij  v. 
Coulthard[(i),  and  secondly,  that  the  verdict  was  against 
tlie  weight  of  the  evidence. 

Grove,  J.  "In  our  judgment,"  said  Grove,  J.,  "the  beneficial  objects  of 

the  doctrine  and  law  of  general  average  would  be  frittered  away 
if,  where  a  sacrifice  is  made,  as  seems  obviously  the  case  here,  to 
save  the  whole  adventure,  the  sharing  the  burden  of  such  sacrifice 
could  be  made  to  depend  upon  nice  questions  of  probability  after- 
wards discussed,  as  to  whether  the  thing  might  or  might  not  have 
been  saved.  In  ordinary  questions  of  general  average,  it  is  pre- 
supposed that  great  danger  exists  to  the  ship  and  cargo,  and  in 
those  cases  the  probability  is  that  the  thing  sacrificed  would  have 
gone  Avith  the  whole  venture,  and  therefore  it  would  be  the  sacrifice 
of  a  probably  valueless  thing.  Here,  if  the  mast  had  gone,  the  ship 
would  probably  have  gone  with  it.  The  ship  was  probably  saved 
by  the  sacrifice  of  the  mast.  The  evidence  appears  all  one  way  on 
this  point.  The  case  differs  in  our  judgment  from  those  of  cutting 
away  wreck,  as  hypothetically  put  by  Willes,  J.,  in  the  case  of 
Johnson  v.  Chapman  {h),  where  he  supposes  a  case  of  part  of  a 
mast  going  overboard,  with  spars  and  sails  attached  to  it,  and 
hanging  by  a  stay,  battering  and  adding  to  the  danger  of  a  vessel. 
There  the  wreck  is  real,  not  anticipatory;  and  as  Willes,  J.,  observes, 
'You  cannot  keep  it;  there  is  no  intentional  sacrifice  in  cutting  it 
away.'  Here,  the  mast  was  soiind  and  entire  as  a  mast;  it  was  in 
its  usual  place,  though  lurching  from  the  rigging  being  gone  from 
one  side. 

(a)  Ante,  p.  120.  p.  582  ;  35  L.  J.  (C.  P.)  23,  at  p.  28  ; 

(fe)  (1865),  19  C.  B.  (N.  S.)  563,  at       ante,  p.  119. 


SECT.  XXVII.]  STATE  OF  WRECK.  123 

"  It  would  defeat  the  main  utility  of  geueral  average,  if,  at  a  Danger  ..f 

moment  of  emergency,  the  captain's  mind  were  to  hesitate  as  to  ^^^^^j^^^^^^g 

saving  the  adventure,  through  fear  of  casting  a  burden  on  his  owners. 

What  was  the  pressing  necessity  here  at  the  time  of  the  act?     The 

prevention  of  the  ship's  being  torn  up  and  lost.     '  Wreck  '  is  hardly  Wreck  not 

1  •         ii  1      i-    1    contingent 

an  accurate  term  for  contingent  Avreck.     The  making  the  j)Otential  ^rgck. 

the  same  as  the  actual,  we  cannot  help  thinking,  will  much  em- 
barrass the  law  on  the  subject;  and  the  judgment  of  experts  as  to 
probabilities  after  the  event  is  a  very  dangerous  criterion  for  a 
jury  to  be  guided  by.  The  case  of  Corry  v.  Coultharcl  is  almost 
identical  in  facts  with  this  case;    indeed,  in  our  judgment,  it  is 

identical  in  so  far  as  the  legal  question  is  concerned 

"  In  the  present  case  it  appears  to  us  the  evidence  is  greatly 
preponderating,  that  the  mast  was  cut  away  for  the  benefit  of  the 
ship,  cargo,  and  crew,  that  it  was  not  actual  wreck,  and  was  not  cut 
away  as  such.  .  .  .  Being  of  opinion  that  the  question  of  the  mast 
being  saved  was  put  to  the  jury  as  one  of  probability,  and  not  of 
possibility;  that  no  question  was  left  to  them  as  to  the  purpose  for 
which  the  mast  was  cut  away ;  and  that  contingent  wreck  was  treated 
by  the  judge  as  though  it  were  actual  wreck, — we  think  there  should 
be  a  nev/  trial.  We  also  think  that,  although  the  learned  judge  is 
not  dissatisfied  with  the  verdict,  yet  the  verdict  was  against  the 
weight  of  evidence,  regarding  the  evidence  from  the  point  of  view 
Ave  have  regarded  it  in  in  this  judgment "  (c). 

This  case  was  carried  to  the  Court  of  Appeal,  where  in  Court  of 
the  judgment  of  the  Divisional  Court  was  reversed,  and 
that  of  Manisty,  J.,  reinstated.  In  doing-  this,  the  Court 
of  Appeal  adopted  and  concurred  with  the  law  as  laid 
down  in  the  Divisional  Court,  differing  from  it  only  in 
thinking  that  the  law  as  laid  down  to  the  jury  by 
Manisty,  J.,  amounted  to  the  same  thing. 

Bramwell,  L.  J.,  said: 

"I  think  that  this  appeal  must  be  allowed.     The  right  question  Bmmwell,L.J. 
was  left  to  the  jury,  and  the  verdict  was  supported  by  sufficient 
evidence;   and  when  the  judgment  of  the  Common  Pleas  Division 
is  examined,  it  will  be  found  that  there  is  no  real  difference  as  to 

(c)  Shepherd  v.  Kuttgen  (1877),  2  C.  P.  D.  578,  at  p.  582. 


124  SACRIFICES  OF  SHIP.  [CHAP.  III. 

the  law  between  Grove,  J.,  and  Lopes,  J.,  upon  tlie  one  hand,  and 
Manisty,  J.,  upon  the  other;    but  that  they  misapprehended  the 
effect  of  what  he  stated  to  the  jury.     They  seem  to  have  thought  that 
he  omitted  to  ask  the  jury  whether  it  was  possible  to  save  the  mast. 
I  think  he  did  ask  that  question,  and  that  it  was  answered  in  the 
negative,  for  the  jury  said  that  the  mast  was  '  hopelessly  lost.'  Upon 
the  evidence  it  is  plain  that  the  mast  was  in  the  course  of  destruc- 
tion, and  the  only  matter  to  be  considered  by  those  on  board  was, 
in  what  manner  its  destruction  should  be  completed.     Lord  Justice 
Brett  has  commvmicated  to  me  the  propositions  which  he  intends 
to  lay  doAvn  in  the  course  of  his  judgment,  and  I  think  that  they 
Avill  be  of  value  for  guidance  in  future  cases  of  this  sort.     I  wish, 
however,  to  put  my  own  vioAv  shortly,  in  these  terms:  Where  the 
thing  destroyed  has  some  peculiar  condition  attached  to  it,  so  that 
it  will  be  lost  whether  the  whole  adventure  is  saved  or  not,  then  its 
destruction  cannot  be  deemed  a  sacrifice.     I  think  that  this  propo- 
sition applies  to  the  present  facts.     The  mast  was  in  such  a  state 
that  it  must  have  been  lost,  whether  the  vessel  got  safely  to  port  or 
not.     Consequently  there  was  no  sacrifice  of  it  when  it  was  cut 
away,  and  the  plaintiffs  have  no  claim  for  contribution.     In  truth, 
the  cause  of  the  mast  being  lost  was  the  giving  way  of  the  rigging, 
Agrees  with      ^yhich  in  aU  probability  had  been  imperfectly  fitted.     I  very  much 
dJ^'ii^Divi-  agree  with  the  view  of  the  law  taken  by  the  judges  of  the  Common 
sional  Court,     pieas  Division;    but  differing  from  them  as  to  their  view  of  the 
direction  to  the  jury,  I  think  that  the  right  question  was  put  by 
Manisty,  J.,  with  very  great  precision"  (d). 

Brett,  L.  J.,  said  : 

Brett,  L.  J.  "  In  my  opinion  the  judge  at  the  trial  left  the  right  question  to 

the  jury,  and  there  was  evidence  upon  which  the  jury  might  find 
for  the  defendants,  and  upon  that  finding  no  claim  for  general 
average  can  be  maintained.  Strange  to  say,  the  question  before  us 
is  novel  in  the  English  courts.  The  definition  of  general  average 
has  often  been  discussed,  and  the  incidents  necessary  to  found  a  claim 
for  contribution  have  often  been  enumerated;  and  it  has  been  estab- 
lished that  general  average  cannot  exist  without  an  intentional 
sacrifice,  but  the  meaning  of  the  word  '  sacrifice,'  and  what  is  com- 
prehended by  it,  have  never    before    been  thoroughly  considered. 

{d)  ShrphercJ  v.  Kottgev  (1877),  2  C.  P.  D.  o8o,  at  p.  oSS. 


SECT.  XXVJJ.  I  STATE  OF  WRECK.  125 

The  question  before  us  arose,  to  a  certain  extent,  in  Corry  v. 
Coiilthard(e),  but  owing-  to  the  finding-  of  the  jurj^  in  that  case, 
it  was  not  there  necessary  to  define  the  meaning-  of  the  w^ord 
'sacrifice  '  so  nicely  as  it  must  be  defined  upon  the  present  occasion. 

"Unless  'possibility'  means  either  a  mathematical  or  scientific 
possibility,  I  entirely  agree  with  Lord  Justice  Bramwell  that  the 
question  left  to  the  jury  by  Mauisty,  J.,  was  really  and  substantially 
the  question  which  the  judges  of  the  Common  Pleas  Division  con- 
sidered ought  to  have  been  asked  of  the  jury;  but  in  the  ordinary 
occurrences  of  life  '  possibility  '  is  never  used  in  that  sense,  and  is 
not  so  used  in  any  part  of  maritime  law.  In  the  present  case, 
the  act  relied  on  by  the  plaintiffs  as  the  act  of  sacrifice  is  the  cutting- 
of  the  port  rigging  in  order  to  ensure  the  immediate  falling-  of  the 
mast;  and  we  have  to  determine  whether  the  contention  for  the 
plaintiffs  is  correct. 

"I  shall  assume,  for  the  purposes  of  my  judgment,  that  the 
captain,  when  he  ordered  the  port  rigging-  to  be  cut  away,  did  intend 
to  sacrifice  the  mast  for  the  benefit  of  both  ship  and  cargo;  and  I 
shall  not  assume  that  he  believed  at  that  moment  the  mast  to  be 
absolutely  lost,  and  that  he  cut  it  away  only  with  the  object  of 
getting-  rid  of  it.  Now,  consistently  with  the  decision  of  this  court 
in  Corry  v.  Coultharcl(f),  and  in  accordance,  as  it  seems  to  me, 
wdth  what  was  intimated  by  the  court  in  that  case,  the  following- 
proposition  may  be  stated:  If  anything-  on  board  a  ship,  which  is  cut  Tests  of 
or  cast  away  because  it  is  endang-ering  the  whole  adventure,  is  in 
such  a  state  or  condition  that  it  must  itself  certainly  be  lost, 
although  the  rest  of  the  adventure  should  be  saved  Avithout  the 
cutting-  or  casting-  away,  then  the  destruction  of  the  thing  gives  no 
claim  for  general  average.  Or  the  proposition  may  be  stated  in 
the  following-  terms:  Where,  whether  the  act  relied  upon  as  the 
act  of  sacrifice  had  been  done  or  not,  the  thing-  in  respect  of  Avhich 
contribution  is  claimed  Avovild,  by  reason  of  its  own  state  or  condition, 
have  been  of  no  value  whatever,  or  would  have  been  certainly  or 
absolutely -lost  to  the  owner,  although  the  rest  of  the  adventure 
had  been  saved,  there  is  nothing-  lost  to  the  owner  by  the  act,  and 
therefore  there  is  nothing  sacrificed,  that  is  to  say,  there  is  no  sacri- 
fice (g).     Another  form  of  stating  the  result  of  this  proposition  is 

(e)  See  aufc,  p.  120.  ((/)  Cf.  judgment  of  Bigliam,  J.,  in 

(/)  Aide,  p.  120.  the  case  of  Iredale  v.  China  Traders' 

Insce.  Co.,  [1899]  2  Q.  13.  3J(]. 


126  SACRIFICES  OF  SHIP.  .  [CHAP.  III. 

to  say  that  there  is  nothing  in  respec'  of  which  a  general  average 
contribution  could  be  claimed,  because  the  thing  in  respect  of  which 
the  contribution  is  claimed  was,  when  the  act  relied  upon  was  done, 
of  no  value  whatever  to  the  owner.  Does  this  proposition  apply 
here  ?  It  seems  to  me  that  the  finding  of  the  jury  upon  the  question 
left  to  them  must  mean  that  at  the  time  when  the  act  relied  upon 
was  done,  namely,  when  the  port  rigging  was  cut  away  in  order  to 
cause  the  mast  to  fall  overboard,  the  mast  could  not  be  saved,  not 
indeed  by  reason  of  any  inherent  defect,  but  owing  to  the  violence 
of  the  gale,  the  giving  way  of  the  rigging,  and  the  impossibility  of 
the  weather  moderating  so  as  to  allow  it  to  be  repaired;  the  mast 
was  necessarily  lost,  and  must  have  been  lost  to  its  owners,  whether 
the  vessel  should  or  should  not  be  saved;  or,  in  other  words,  that 
though  the  ship  should  outlive  the  storm,  and  though  the  mast 
should  not  be  cut  away,  it  would  fall  overboard  and  be  lost  in  the 
space  of  a  few  minutes;  there  was  no  possibility,  of  which  human 
foresight  could  take  account,  of  the  storm  abating,  so  as  to  enable 
the  mast  to  be  secured,  and  the  mast  was  lost  whether  it  was  or 
was  not  cut  away.  Under  these  circumstances  it  seems  to  me  that 
there  was  no  sacrifice  of  the  mast,  that  the  act  relied  vipon  caused 
no  loss  to  the  owners,  and  therefore  that  no  claim  for  general 
average  can  be  sustained. 

"I  may  add  that  what  distinguishes  this  case  from  Corry  v. 
Coulthard  (h)  is  that  there  the  jury  found  that  it  was  possible  to 
save  the  mast;  it  follows  that  in  Corry  v.  Coulthard  the  mast  was 
of  some  value,  and  the  facts  of  that  case  did  not  fall  within  the 
proposition  which  I  have  endeavoured  to  lay  down"  (i). 

Cotton,  L.  J.,  said: 

Cotio>i,L.J.  '"Hopelessly  lost'  must  mean  'impossible  to  be  saved.'     In 

the  language  of  everyday  life  a  thing  is  impossible  when,  according 
to  the  ordinary  course  of  human  events,  no  expectation  can  be 
entertained  that  it  will  happen.  .  .  .  Where  the  thing  said  to  have 
been  voluntarily  abandoned  or  destroyed  is  in  such  a  state,  by  reason 
of  a  peril  peculiar  to  itself,  that  if  the  act  of  supposed  sacrifice  had 
not  been  done,  it  Avould  have  very  shortly  been  destroyed,  without 
the  rest  of  the  common  adventure  being  lost,  the  act  of  slightly 


(A)  Ante,  p.  120. 

(r)  Shepherd  v.  KcHfjen  (1877),  2  C.  P.  D.  585,  at  p.  589. 


SECT.  XXVII.J  STATE  OF  WRECK.  127 

hastening-  tlie  moment  of  loss,  is  not  an  act  of  sacrifice  which  enables 
the  owner  of  the  thing  to  claim  contribution"  (1-c). 

[In  Montr/onicr/jx.  Indemnitjj  Mutual  Marine  Ins.  Co.  [I), 
the  facts  were  that  T/ie  Airlie  encountered  bad  weather, 
in  which  she  rolled  and  lurched  violently.  The  main- 
mast, which  was  made  of  iron,  and  hollow,  settled  down, 
and  the  master,  fearing-  that  it  would  break  and  fall  on 
the  deck  and  cause  the  loss  of  the  vessel,  cut  awav  the 
windward  rigging,  after  which  the  mast  fell  on  the  side 
and  was  cut  adrift.  It  was  afterwards  found  that  the 
mast  had  been  in  no  greater  peril  than  the  rest  of  the 
adventure.  It  had  broken  across  about  twelve  inches 
from  the  keelson.  The  upper  portion  had  crushed  into 
the  lower  in  telescope  fashion  and  rested  securely  on  the 
keelson.     Mathew,  J.,  said  in  his  judgment : — • 

"  The  mast  was  not  in  such  a  condition  that  it  must  have  been 
lost  whether  the  rest  of  the  adventure  had  been  saved  or  not.  It 
could  not  be  said  that  the  mast  had  no  value,  or  that  it  was  impossible 
to  be  saved.  There  was  a  chance  of  saving  it,  and  that  chance  was 
thrown  away  for  the  safety  of  the  whole  adventure.  The  master 
would  seem  to  have  exercised  his  judgment  reasonably,  and  it  Avas 
not  necessary  that  his  view  should  be  borne  out  by  the  facts  when 
they  came  to  be  afterwards  examined.  For  the  defendants  reliance 
was  placed  on  the  case  of  SJiepherd  v.  Kottgen  (m),  where  tlio  mast 
was  cut  away,  but  Avas  held  to  have  been  already  lost.  There  it 
appeared  that  the  rigging  had  been  loosened  in  the  storm,  and  that 
all  that  Avas  done  Avas  to  anticipate  by  a  foAv  minutes  an  inevitable 
loss.  The  mast  of  The  Airlie  before  the  rigging  Avas  cut  Avas  firmly 
uj)held,  and  could  have  stood  and  been  saved  if  the  master  had  not 
ordered  it  to  be  cut  away.  Upon  the  question  of  fact  I  am  of  opinion 
that  there  Avas  a  general  aA'erage  sacrifice"  (??).] 

(k)  At  p.  591.  torn  loose  in  a  gule,  was?  cut  away  to 

(?)  [1901]  1  Q.  B.  147:  prevent  it  from  beating  a  hole  in  the 

(m)  (1877),  2  ('.  P.  D.  o78.  ship.     But   for   the   storm   it    could 

(n)  Cf.    Mai/    V.    Keystone    YtlUnr  have    been    replaced     in    jjosition  ; 

rine    Co.    (1902),    117   Fed.   E.   287,  and  its  value  in  its  damaged  condi- 

Avhere  the  rudder  of  a  ship,  partly  tion  was  allowed  in  general  average. 


128 


SACRIFICES  OF  SHIP. 


[chap.  III. 


Conclusion. 


Formula. 


Proposed 
rules  of 
practice. 


These  decisions  are  set  fortli  here  very  fully  on 
account  of  their  great  importance.  English  adjusters 
have  in  them  for  the  tirst  time  an  authoritative  principle 
for  their  guidance  on  the  subject  of  wreck  cut  away. 
What  remains  is,  first,  to  condense  this  principle  into  a 
formula,  and  secondly,  to  apply  it  to  particular  cases  in 
the  form  of  a  set  of  working  rules.  This  is  especially 
the  business  of  our  Adjusters'  Association. 

Our  formula  may  be  expressed  thus:  whatever, 
when  cut  away  or  parted  from  for  the  common  safety,  is 
already  "in  a  state  of  wreck,"'  is  not  admissible  as 
general  average.  That  is  in  a  state  of  wreck  which  is 
in  such  a  state  that,  even  if  it  had  not  been  thus  cut 
away  or  parted  from,  and  though  the  ship  and  cargo  had 
nevertheless  escaped  the  danger,  that  thing  would  cer- 
tainly have  perished  or  become  of  no  value.  It  is  not 
enough  that  it  would  perhaps  or  very  likely  have 
perished :  on  the  other  hand,  it  is  not  necessary  that  its 
perishing  should  be  demonstrably  certain  ;  but  if,  accord- 
ing to  the  ordinary  course  of  human  events,  no  expecta- 
tion could  be  entertained  that  it  could  be  saved  (a  matter 
on  wdiich  the  judgment  of  experts  may  be  called  in), 
then  it  must  be  treated  as  in  a  state  of  wreck  or  of  no 
A^aliie. 

Any  general  rules  that  may  be  framed,  applicable 
to  classes  of  cases,  must  be  regarded  as  subject  to  this 
principle,  and  therefore  as  of  prima  facie  authorit}'-  only  ; 
their  use,  in  fact,  being  to  deal  w^ith  those  numerous 
cases  in  which  there  is  no  attainable  evidence,  one  way 
or  the  other,  as  to  these  questions  of  reasonable  possibility^ 
I  sujTffest  the  following  : — 


'&o" 


1.  When    a   mast    has    fallen    overboard,    and    the 
broken  mast  with  yards  and  sails  is  cut  from  alongside, 


SECT.  XXVII.]  STATE  OF  WKECK.  129 

this  is  to  be  treated  as  wreck  and  of  no  value  unless  the 
contrary  is  proved. 

To  prove  the  contrary,  it  must  be  shown,  by  the 
evidence  of  experts,  or  other  positive  evidence,  that  there 
was,  in  the  particular  case,  owing  to  some  exceptional 
circumstances,  a  reasonable  possibility  of  recovering 
some  portion  of  the  wreck,  and  of  its  being  when 
recovered  of  some  value. 

To  give  an  example :  I  liave  known  cases  where  the 
squall  which  carried  away  tlie  mast  was  seen  travelling 
across  a  sea  that  was  calm,  and  after  a  few  minutes 
leaving  the  sea  calm  again  :  so  that,  if  it  only  had  been 
safe  to  postpone  the  cutting  away  of  the  wreck  for, 
suppose,  live  minutes,  it  would  have  been  lying  alongside 
in  smooth  water,  and  the  sails  and  some  of  the  spars  and 
ropes  could  have  been  recovered  with  ease,  and  perhaps 
very  little  injured.  In  such  a  case  there  certainly  ought 
to  be  some  allowance  for  the  loss  by  cutting  away. 

2.  When  a  mast  is  still  standino;,  or  in  situ,  thouofh 
sprung  or  cracked  or  loose  from  breaking'  of  the  rio-o-ino- 
or  other  cause,  and  is  cut  away  for  the  general  safety, 
the  presumption  is  the  other  way  :  it  is  to  be  taken  that 
the  mast  may  possibly  be  secured,  unless  the  contrary  be 
proved  (o).  The  contrary  is  proved,  if  on  the  evidence 
of  experts  or  other  positive  evidence  it  is  proved  that 
there  was,  at  tlie  time  of  cutting  away,  no  reasonable 
possibility  (as  defined  above)  of  saving  the  mast. 

This  rule  may  seem,  perhaps,  more  questional^le  than 
the  former:  for,  it  may  be  said,  we  have  for  our  guid- 
ance two  sucli  cases  determined  by  juries,  and  these  were 

(o)  Of  course,  if  the  mast  is  cracked  deduction   to   this   extent    must    b(! 

•or  otherwise  injured,  so  that,  though  made  from  tlic  allowance  in  general 

the  mast  might  have  been  saved,  it  average.     See   Kelvin's   case,   below, 

must  necessarily  have  cost  something  p.  130. 
to  repair  the  accidental  damage,   a 

L.  K 


130 


SACRIFICES  OF  SHIP.  [CHAP.  III. 


determined  in  oj^posite  ways.  But  the  decision  of  the 
jury  in  Shepherd  v.  Kottgen  was  pronounced  by  the 
Divisional  Court  to  be  against  the  weight  of  evidence, 
and  the  Court  of  Appeal  went  no  further  than  to  say 
there  was  evidence  upon  which  the  jury  might  find  for 
the  defendants  (p). 

To  illustrate  this,  I  may  give  one  or  two  cases  which 
have  occurred  in  practice. 
Kelvin's  case.  The   ship   Kelimi^  outward  bound  from  Liverpool, 

sprung  her  main  and  mizen  (lower)  masts  in  a  gale,  and 
being  thus  disabled  bore  up  for  Liverpool  to  repair,  and, 
a  violent  gale  coming  on,  was  brought  to  anchor  off  the 
North-West  Lightship.  Shortly  she  began  to  drive,  and. 
being  in  danger  of  drifting  on  the  sandbanks,  the  pilot 
ordered  the  main  and  mizen  masts  to  be  cut  away  for 
the  general  safety.  In  this  case  the  adjuster  admitted 
into  general  average  the  value  of  the  topmasts  and  all 
above,  and  of  the  yards,  sails,  and  rigging  of  the  lower 
masts  ;  but  he  did  not  allow  the  lower  masts  themselves, 
being  of  opinion  that  these  would  have  had  to  be  replaced 
in  any  case:  and  the  claim  thus  adjusted  was  settled 
without  dispute. 

A  ship's  main-mast  had  been  carried  away,  and 
remained  attached  to  the  mizen-mast  by  the  stays, 
braces,  and  other  ropes.  The  wreck  hung  heavily  on 
the  mizen-mast,  and  caused  it  to  sway  about  to  such  an 
extent  that  the  crew  feared  it  would  fall  on  deck  so  as  to 
be  dangerous.  They  could  not  get  at  the  ropes  which 
held  the  main-mast  to  the  mizen-mast,  for  the  wreck  was 
too  far  to  leeward,  and  the  mizen-mast  was  lurching  too 
violently  for  the  men  to  go  aloft.  They  therefore  cut 
away  the  mizen-mast  so  that  it  should  fall  aft  and  clear 
of  the  ship.     This  loss  of  the  mizen-mast  was  treated  by 

(ji)  Ante,  p.  123. 


SECT.  XXVIII.]       MISCELLANEOUS  CASES — PRACTICE.  131 

the  adjuster,  in  1857,  as  particular  average,  on  the 
ground  that  by  the  loss  of  the  main-mast  the  mizen-mast 
was  placed  in  a  state  of  wreck.  This  conclusion,  Avith 
our  present  lights,  must  be  regarded  as  at  least  very 
questionable. 

Miscellaneous  Cases. 
S  28.  Tlie  followin«:  few  cases  are  of  no  authority,  MisceUaneou* 

o  o  .        .      cases. 

but  are  here  set  down  simply  to  illustrate  the  practice  in 
cases  of  some  curiosity  or  doubt. 

A    schooner,    di'if tins'    in    a    stronp^    tideway,    was  Cnttini^away 
carried  under  the  hawse  of  a  ship   at  anchor,  and  the  sion. 
ship's  bowsprit  catching  the  stay  between  the  two  masts 
of  the  schooner,  the  latter  was  pressed  over  so  as  to  be 
in  danger  of  capsizing,  to  prevent  which  the  schooner's 
masts   were   cut   away.     This  was   treated   as   general 


average. 


Two  vessels,  both  at  anchor,  were  in  collision,  and 
in  attempting  to  get  clear  the  anchor  of  one  of  them 
was  hove  up,  but  found  to  have  hooked  the  chain  of 
the  other ;  whereupon,  to  get  clear  and  avoid  a  second 
collision,  the  anchor  was  slipped.  This  was  treated  as  a 
general  average. 

Speaking  generally,  when  two  vessels  are  in  collision, 
and  it  becomes  necessary  for  the  safety  of  one  of  them  to 
clear  her  by  cutting  away  parts  of  the  rigging  which  are 
entangled  with  that  of  the  other  ship,  the  rigging  so  cut 
away  is  not  treated,  in  practice,  as  in  a  state  of  wreck 
and  worthless  ;  but  an  allowance  is  made,  in  general 
average,  for  its  value  at  the  time  when  it  was  cut  away. 

Where  a  ship's  anchor  and  chain  were  washed  off  Anchor 

washed  by 

the  bows  by  a  sea,  and  hanging  over  the  bow  threatened  sea  off  bows. 
to  stave  it  in,  and  were  therefore  cut  away,  is  this  loss 
general  average  ?     Some  years  ago  an  adjuster  rejected 

k2 


132 


SACRIFICES  OF  SHIP. 


[chap.  III. 


Sacrifice 
merged  in 
^subsequent 
loss. 


Boat 
washed  adrift. 


;  or  spars 


the  claim,  treating  it  as  in  a  state  of  wreck.  This  I  now 
think  is  wrong,  since  there  can  be  no  doubt  that,  were  it 
not  for  the  immediate  danger,  the  anchor  might  sooner 
or  later  have  been  hove  in  by  the  windlass. 

AVhere  a  ship's  bottom  is  so  damaged  by  spars  cut 
away  that  she  must  be  re-metalled,  and  during  the  same 
voyage,  no  matter  wdiether  before  or  after  the  cutting 
away  of  the  spars,  her  bottom  is  so  damaged  by  stress  of 
weatherthat  in  order  to  recaulk  it  she  must  be  re-metalled, 
the  cost  of  re-metalling  is  treated  as  particular,  not 
general,  average.  This  is  consistent  with  the  principles 
laid  down  above :  for  the  cutting  away  of  the  masts  has 
in  result  occasioned  no  loss,  in  respect  of  metalling,  to 
the  shipowner ;  since,  whether  they  had  been  cut  aw^ay 
or  not,  the  bottom  must  have  been  re-metalled.  The 
value  of  the  metal  actually  rubbed  away  by  the  spars,  at 
the  price  of  old  metal,  is  all  that  can  be  allowed  ;  for  this 
is  actually  lost  [q). 

If  a  boat  has  been  washed  to  leeward  in  a  gale,  and 
is  thereby  rendered  dangerous  to  the  ship,  as  for  instance 
by  keeping  her  from  righting  if  she  is  on  her  beam  ends, 
and  is  on  that  account  broken  up  by  the  crew  or  thrown 
overboard,  the  practice  formerly  Avas  to  disallow  the 
boat,  as  in  a  state  of  wreck  and  valueless.  This  is 
clearly  wrong :  a  boat,  or  spare  spars  or  other  articles 
properly  on  deck,  wdiich  are  adrift,  and  dangerous,  but 


(7)  It  has  been  doubted,  however, 
"whether  this  is  consistent  with  the 
judgment  of  Brett,  M.  E.,  in  The 
China  and  Transpacific  Co.  v.  Marine 
Ins.  Co.  (1S85)  (11  App.Cas.  at  p.  579), 
from  which  it  might  be  inferred  that 
in  these  mixed  cases  one  half  of  the 
damage  should  be  set  down  as  general 
average.  "  I  may  say  that  I  do  not 
mj^self  share  this  opinion,"  was  Mr. 


Lowndes'  conclusion.  The  editors 
also  fail  to  appreciate  the  application 
of  the  case  cited  to  the  question  under 
discussion.  The  judgment  in  that 
case  deals  with  the  division  of  dock 
charges  incurred  while  two  sejjarate 
operations  are  being  jierformed ;  the 
question  under  discussion  is,  whether 
the  cost  of  one  operation  ought  to  be 
divided. 


SECT.  XXVIII.]       MISCELLANEOUS  CASES PRACTICE.  ^^^ 

which  if  it  were  safe  to  wait  till  the  gale  should  go  down 
could  certainly  be  secured  again,  are  on  precisely  the 
same  footing  as  the  deals  in  Johnson  v.  Chapman  (r). 

Anchors  slipped  because  they  become  "foul" — that  Fouianchors. 
is,  held  fast  by  some  obstruction  under  water,  as,  by 
liavino-  cauffht  under  a  rock  or  some  other  anchors  or 
chains, — are  allowable  as  s^eneral  averajje  onlv  when  it 
may  reasonably  be  inferred  that  the  obstruction  was  of 
a  temporary  nature,  so  that  the  anchor  might  have  been 
cleared  if  it  had  not  been  dangerous  to  wait.  If,  then, 
after  all  practicable  exertions  have  been  made  to  raise 
the  anchor,  the  captain  slips  the  chain  in  despair  of  ever 
recovering  it,  this  is  not  general  average.  But  if,  before 
there  has  been  time  to  make  those  exertions,  and  while 
it  is  still  uncertain  whether  the  anchor  is  permanently 
fixed  or  not,  some  sudden  danger,  such  as  a  shift  of  wind 
throwing  him  on  a  lee  shore,  or  the  risk  of  a  collision, 
renders  it  necessary  to  slip  the  chain,  the  presumption  is 
in  practice  taken  to  be,  that  the  chain  might  possibly 
have  been  recovered  if  time  could  have  been  given,  and 
therefore  it  is  treated  as  general  average.  This,  how- 
ever,, is  a  presumption  merely,  and  no  doubt  might  be 
defeated  upon  the  evidence  of  experts,  if  it  could  be 
obtained,  that  under  the  particular  circumstances  the 
recovery  of  the  anchor  was  virtually  or  as  a  matter  of 
common  sense  impossible. 

The  same  principles  are  applicable  to  the  case  of  Twisted 
chains    slipped   because    twisted    with    one   another,   or 
because  the  anchor  has  run  out  so  far,  in  deep  water, 
that  it  cannot  be  got  in. 

When  a  chain  has  by  accident  been  broken  near  the  Ends  of 

-  ,  1      ,    ,  1  •  1  •  p    •  J     1  •  parted  chains. 

anchor,  so  that  there  remains  a  long  piece  ot  it  hanging 
outside  the  ship,  and  if,  before  this  can  be  got  in  by  the 

(r)  (1865),  19  C.  B.  (N.  S.)  582;  ante,  pp.  78,  79. 


134  8ACKIFICES  OF  SHIP.  [CHAP.  III. 

windlass,  it  becomes  necessary  to  slip  it  because  it  has 
become  a  som-ce  of  danger  to  the  ship,  by  impeding  its 
movements  on  a  lee  shore  or  to  avoid  a  collision,  the 
practice  formerl}^  was  not,  but  now  is,  to  allow  the  loss 
of  this  remainder  as  general  average.  The  2:)resent  prac- 
tice is  evidently  correct,  according  to  the  principle  laid 
down  by  the  decisions. 

Jury-rig  and  analogous  cases, 

§  29.  We  come  now  to  a  class  of  cases  as  to  which 
we  have  no  express  legal  decisions,  but  custom  or  prac- 
tice only.  That  this  is  of  no  binding  authorit}^,  in 
matters  of  principle,  has  already  been  pointed  out  [s). 
There  is,  however,  on  the  part  of  our  judges  a  natural 
tendency — difficult  indeed  to  be  reckoned  on,  since  it  is 
as  naturally  stronger  in  some  judges  than  others — to  pay 
a  sort  of  prima  facie  respect  to  such  customs,  as  presum- 
ably falling  in  with  the  wishes  and  perhaps  requirements 
of  mercantile  men. 
Ju-y  masts  A  vcry  aucicnt,  general,  and  undisputed  custom  of 

an  ru  ers.  ^^^.^  \^\y^^[  {^  that  which  rclatcs  to  jury-rig.  When  a  ship's 
mast  or  rudder  is  carried  away,  and  a  "jury"  or  tempo- 
rary mast  or  rudder  is  fitted  up  at  sea  as  a  substitute,  the 
value  of  the  materials  cut  up  or  destroyed  for  the  pur- 
pose, such  as  spare  spars,  ropes,  chain,  or  the  like, 
together  with  any  damage  done  to  the  hull  of  the  ship 
by  cutting  or  adapting  it  to  the  purpose,  or  by  the  action 
of  the  jurj^-materials — e.g.^  the  corrosion  of  the  copper  by 
chains  carried  from  forward  or  amidships  to  work  a  jury- 
rudder — are  in  practice  treated  as  general  average. 

Tliis  practice  is  supported  by  the  decision  in  Birklcg 
V.  Prcsgrave  (t),  so  far  as  the  articles  thus  used  are  ap- 

(s)  Chap.  II.  §  9.  The    Bona,    [1895]    P.    932,    infra, 

{t)    Ante,  §   24,  p.  112.     See   also      §  34. 


SECT.  XXIX.]      JURY-RIG  AND  ANALOGOUS  CASES. 


135 


plied  to  different  uses  from  Avhat  tliey  were  originally 
intended  for.  "The  distinction,"  says  Carver,  "is  to 
be  drawn  between  the  use  of  things  for  their  ordinary 
purposes,  and  the  use  of  them  in  ways  for  which  they 
were  not  intended  "  (u).  This  would  apply  to  running- 
rigging  or  towing  lines  cut  up  for  securing  a  jury-rudder ; 
but  hardly,  perhaps,  to  the  spare  spars,  since  these  are  put 
on  board  for  such  purposes  only :  but  in  practice  no  dis- 
tinction is  drawn  between  them.  The  entire  cost  of  the 
jury-rig  is  treated  as  general  average  :  not  only  the  sizars  Sails  spoUt  in 
and  ropes  cut  up  and  deliberately  spoilt  for  the  purpose, 
but  also  the  jury-sails  which  are  subsequently  blown 
away,  by  reason  of  their  not  being  adapted  to  the  ser- 
vice to  which  they  are  thus  provisionally  turned,  or  of 
their  having  from  any  reason  been  exposed  to  an  unusual 
risk,  as,  for  example,  from  bending  a  topgallant-sail  to 
do  the  work  of  a  topsail. 

Rockets  or  blue  lights  burnt  as  signals  of  distress,  Rockets, 
[or  oil  carried  specially  for  use  as  storm-oil,  and  so  used  pumps  extra. 
in  bad  weather],  or  fenders  put  out  to  prevent  collision, 
and  smashed,  or  damage  to  the  pumps  caused  by  the 
stress  of  pumping  a  leaky  ship,  are  not  treated  as  general 
average  ;  for  that  is  the  very  purpose  for  which  such 
things  are  carried  in  the  ship. 

Spars  or  ropes  cut  up  at  sea  to  "  fish  "  or  secure  a  Fishing 

sprung  mast. 

mast  that  is  sprung,  or  to  secure  boats  or  spare  spars 
when   adrift,   or  to   make  a   "drag"   to  get  the  ship's 


(«)  Carver,  Carriage  by  Sea,  §  384. 
"  A  general  pi'actice,"  says  Lord 
Blackburu,  "  long  continued  amongst 
English  adjusters,  affords  strong- 
ground  for  thinking  that  the  practice 
is  one  which  is  not  in  general  incon- 
venient, and  it  throws  a  considerable 
onus  on  those  who  impugn  it  to  show 


such  as  to  render  an  adherence  to 
the  practice  in  that  case  against  prin- 
cii^le."  [Svendsen  v.  Wallace,  10  App. 
Cas.  404,  at  p.  416.)  See  also  the 
judgments  in  Balmoral  S.S.  Co.  v. 
Marten,  [1902]  A.  C.  511,  as  to  the 
desirabilitj"  of  upholding  a  long- 
established  practice  of  average  ad- 


that  the  particular  circumstances  are      justers. 


136 


SACRIFICES  OF  SHIP. 


I  CITAP.  III. 


Anchor  sud- 
denly let  go. 


Hawser  used 
for  chain. 


Damage  by 
docking  in  a 
gale. 


Damage  to 
ship  by  dis- 
charging 
cargo. 


head  round  Avhen  in  a  position  of  danger,  or  to  construct 
pumping  machines,  or  for  any  such  out-of-the-way 
purpose  wliich  may  have  the  effect  of  rescuing  the  ship 
from  danger,  are  treated  as  general  average. 

When  an  anchor  is  let  go  without  the  usual  pre- 
parations, in  order  to  avoid  some  sudden  danger,  such 
as  a  collision  or  the  running  aground,  and  in  consequence 
the  chain  snaps,  tliis  is  in  practice  treated  as  general 


average. 


When  a  ship's  anchors  have  been  carried  away,  and 
to  prevent  her  running  aground  it  is  necessary  to  moor 
her  in  a  tide-way  by  a  hawser  and  a  kedge,  and  these, 
being  insufficient  for  such  work,  part  as  soon  as  they  are 
let  go,  this  loss  has  been  treated  as  general  average. 
This  is  a  case  of  applying  the  ship's  materials  to  pur- 
poses for  which  they  are  not  intended,  and  so  exposing 
them  to  an  extraordinary  danger. 

When  a  ship,  having  lost  her  anchors,  or  being  very 
leaky,  so  that  it  is  dangerous  to  remain  in  the  river  or 
roadstead,  is  run  into  a  dock  while  a  gale  is  blowing, 
and  when  it  would  under  ordinary  circumstances  have 
been  improper  to  do  so,  and  is  damaged  by  stiiking 
against  the  pier  in  entering  it,  it  seems  to  be  a  doubtful 
point  whether  this  damage  should  be  treated  as  general 
average.  It  is,  perhaps,  analogous  to  a  voluntary  strand- 
ing, and  therefore  properly  general  average  ;  being  the 
voluntary  substitution  of  a  risk  affecting  the  ship  for 
one  affecting  the  whole.  It  cannot  be  said,  however, 
that  there  is  a  settled  practice  on  the  point. 

If  a  ship  is  necessarily  damaged  in  the  act  of  dis- 
charging cargo  at  a  port  of  refuge,  as,  for  instance,  if 
the  rails  or  hatches  are  broken  for  want  of  proper  appli- 
ances at  the  place,  or  from  the  necessity  of  unusual  haste, 
it  seems  clear  that,   provided   the  cost   of    discharging 


SECT.  XXX.]       TEMPORARY  REPAIR  AT  PORT  OF  REFUGE.  137 

belongs  to  general  average,  this  damage  should  be  treated 
in  the  same  way. 

8   30.  A¥hen    a    ship,    having   sustained   particular  Temporary 

,  I        repairs  at  port 

average  damage,  puts  into  a  port  ot  reiuge  wliere  she  of  refuge, 
cannot  be  repaired  except  in  a  temporary  manner,  such 
repairing  is  not  to  be  considered  as  general  average. 
Tliis  is  virtually  decided  by  the  case  of  Wilson  v. 
Bank  of  Victoria  (x).  Tliere  are,  however,  some  cases 
in  which  what  is  done  at  the  port  of  refuge  is  not 
properly  to  be  called  repairing,  but  rather  the  supplying 
of  a  contrivance  which  may  take  the  place  of  a  tug,  or 
obviate  the  necessity  of  discharging  cargo ;  and  so  may 
properly  be  treated  as  a  general  average,  or  a  substituted 
expense.  It  is  often  difficult  to  draw  the  line.  In  one 
case,  where  a  ship  had  lost  a  rudder,  and  in  order  to 
avoid  the  unreasonable  expense  of  discharging  the  cargo 
and  sending  out  a  new  rudder  from  England  or  perhaps 
replacing  it  on  the  spot  at  an  enormous  cost,  a  contriv- 
ance of  chains  fitted  to  work  in  a  temporary  frame  round 
the  sternpost  was  devised,  by  means  of  which  the  ship 
was  brought  safely  home  at  a  small  expense,  this  was 
treated  by  the  adjuster  as  a  "substituted  charge "(//), 
and  was  so  settled  by  all  parties  without  dispute.  The 
same  course  was  adopted  in  another  case  wliere,  under 
similar  circumstances,  a  leak  in  the  bottom  was  stopped 
by  means  of  "  mushrooms,"  or  iron  plugs  fitted  in  from 
the  outside. 

The  principle  which  underlies  most  if  not  all  these  Principle, 
matters  of  ordinary  practice  may  be  expressed  as  fol- 
lows :  While  it  is  the  duty  of  the  master  under  his  con- 
tract to  apply  each  part  of  his  ship  and  tackling  to  its 

{x)    (1867),    L.  E.    2   Q.  B.    203;       p.  268. 
36  L.  J.  (Q.  B.)  89.     See  ^wsf,  §  55,  {y)  See  2'>ost,  §  56,  p.  268. 


138 


SACKIFICES  OF  SHIP. 


D 


CHAP.  III. 


Damage  done 
in  getting 
ship  clear, 
viz. : — 


Damage  to 

boats 

launched. 


Damage  to 
ship  by 
heaving  off. 


proper  uses  in  carrying  on  his  voyage,  without  regard  to 
the  more  or  less  of  exposure  to  danger  which  the  doing 
so  may  involve  (^•),  he  is  not  bound  to  destroy  any  of 
them,  nor  to  abuse  any — understanding  by  this  term 
''  abuse"  the  using  it  for  purposes  for  which  it  was  not 
intended  nor  constructed,  and  which,  therefore,  expose  it 
to  an  extraordinary  risk  (a).  If  he  does  so,  he  does  it  as 
general  average,  i.e.,  under  an  implied  contract  with  all 
those  whose  property  he  shall  bring  into  safety  by  so 
doing,  that  any  loss  he  thereby  incurs  shall  be  made  good 
by  the  contribution  of  all. 

§  31.  On  the  same  principle,  damage  done  to  a  ship 
by  the  means  taken  to  get  her  off  a  shore,  or  clear  of  a 
collision,  or  otherwise  out  of  a  situation  of  imminent 
danger,  may  frequently  give  rise  to  a  claim  for  general 
average  ;  of  which  the  following  cases,  taken  from  the 
ordinary  practice  of  adjusters,  are  examples. 

If,  after  a  ship  has  run  aground,  one  of  her  boats  is 
launched  in  a  gale  of  wind  to  carry  out  a  hawser  in  order 
to  heave  her  off,  or  otherwise  to  assist  in  floating  her, 
and  the  boat  is  swamped  or  injured  in  the  attempt,  this 
damage  is  treated  as  general  average  :  not  so,  if  the  boat 
were  got  out  merely  to  save  the  lives  of  the  passengers 
or  crew  (b). 

Damage  done  to  the  ship  in  the  act  of  heaving  her 
ahoat  (whether  by  an  anchor  or  a  tug)  with  her  cargo  on 
board,  such  as  hawsers  broken,  a  windlass  or  winch 
strained,  stancheons  started,  or  other  damage  directly 
caused  to  the  ship's  upperworks  or  bottom  by  the  strain 
used,  is  general  average.     It  may  sometimes  be  a  little 

{z)  See   Covington  v.  Roberts,  ante,  (J)  See,  however,  the  dictum  as  to 

§  25.  sacrifices  made  in  fear  of  death,  ante, 

(«)  See  Birldvy  v.  Presgrave,  ante,       §  2,  p.  25. 
§  24  ;   The  Bona,  infra,  §  34. 


SECT.  XXXII.J       SACRIFICE  MERGED  IN  SUBSEQUENT  LOSS.  139 

difficult  to  distinguish  between  damage  caused  by  having 
been  on  the  ground,  and  by  pulling  off,  ejj,  if  her  false 
keel  is  twisted  off  by  the  resistance  which  her  position  on 
the  ground  offers  to  the  strain  at  her  bows.  Baily  (c) 
suggests  the  rough  and  ready  rule,  that  all  damage  above 
the  water  line  shall  be  admitted  as  general  average,  and 
all  below  excluded.  This,  however,  he  does  not  attempt 
to  defend  as  a  matter  of  principle.  The  question  is  not 
whether  the  damage  is  caused  by  heaving  or  caused  by 
the  resistance ;  by  the  strain  at  the  bow  or  the  counter- 
strain  along  the  keel :  that  is  immaterial.  The  question 
is  really  that  raised  in  Shepherd  v.  Kottgen{d\  viz.,  was 
the  damage  already  virtually  suffered  by  the  ship,  so 
that  it  w^ould  have  been  there,  although  the  ship  had  not 
been  hove  off  and  yet  had  floated  ?  We  are  to  inquire, 
supposing,  for  example,  that  the  ship  had  floated  off"  by 
herself  after  being  lightened,  or  by  a  rise  of  tide,  whether 
the  false  keel  could  by  reasonable  possibility  have 
escaped  being  twisted  off  or  otherwise  destroyed ;  and, 
if  so,  the  loss  of  it  must  be  treated  as  a  consequence  of 
the  measure,  adopted  for  the  common  safety,  of  at  once 
heading  her  off,  and  therefore  as  general  average. 

Sacrifice  merged  in  a  mihscqiient  Loss. 

§  32.  I  may  mention  in  this  place,  as  fitly,  perhaps,  sacrifice 
as  at  any  other,  a  point  of  principle  which  has  to  be  subs^'equent 
attended  to  wherever  we  are  called  on  to  discriminate 
between  general  average  and  accidental  or  particular 
average  damage  to  a  ship,  in  the  sense  that  this  or  that 
individual  piece  of  repair  might  have  been  necessitated 
by  either  cause  apart  from  the  other.  Just  as,  in  the 
case  of  a  jettison  followed  by  a  loss,  it  is  not  the  value 

(c)  Baily,  Gen.  Av.  pp.  42,  77.  (c^)  See  ante,  p.  121. 


140  SACRIFICES  OF  SHIP.  [CHAP.  III. 

which  at  the  time  was  sacrificed,  it  is  tliat  which,  in  the 
ultimate  result,  was  lost  to  the  owner,  which  is  to  be 
made  good ;  so  when  damage  is  purposely  done  to  the 
ship  for  the  common  safety,  and,  on  tlie  same  voyage, 
whether  before  or  after  that  act,  the  thing  thus  damaged 
has  been  damaged  by  some  independent  accident,  and 
therefore  the  loss  resulting  from   the  act  of  sacrifice  is 
less  than  was  intended,  or  than  it  otherwise  would  have 
been,  there  must  be  a  proportionably  smaller  compen- 
sation.    For  example,  if  by  reason  of  corrosion  of  the 
metal  through  carrying  chains  along  it  to  work  a  jury- 
rudder  it  is  found  necessary,  on  arrival,  to  re-metal  the 
ship,  but  it  was  likewise  necessary  to  re-metal  her,  to 
caulk  the  bottom  strained  through  bad  weather,  no  part 
of  the  cost  of  re-metalling  is  to  be  attributed  to  general 
average;    for,  if    the  chains  had  never  been  used,   re- 
metalling  would  still  have  been  required  (e).     This  like- 
wise follows  from  the  principle   laid  down  in  Shepherd  v. 
KoUyen{f).     So  if  a  topmast  is  cut  away,   and  subse- 
quently its   lower    mast   is    carried    away  by  an  inde- 
pendent accident,  there  should  be  no  contribution,  for 
the  topmast  would  have  been  lost  in  any  event.     So  in 
the  case. at  present  before  us;  supposing  the  false  keel 
had  clearly  been  carried  away  by  the  strain  of  lieaving 
the  ship  off,  yet  if  the  main  keel  had  been  split  by  lying 
on  the  ground  and  bumping  there,   and  if  in  order  to 
repair  the  main  keel  it  would  have  been  necessar}^  to 
tear  off  and  destroy  the  false  keel,  so  that  its  carrying 
away  by  heaving  the  ship  off  has  occasioned  no  actual 
loss  to  the  owner,  there  can  be  no  claim  on  this  account 

(e)    Strictly     speaking,     however,  re-metalling,  due  to  the  action  of  the 
allowance  should  be  made  in  general  chains  used  for  the  purpose  of  work- 
average  of  an  amount  representing  ing  the  juiy-rudder. 
the  reduction  in  the  value  of  the  old  (/)  Ante,  p.  121. 
metal,   credited  against  the   cost   of 


SECTS.   XX.\II1.,  XXXIV.]         DAMAGES.  I'll 

as  general  average.  With  these  principles  for  our  guide, 
there  ought  to  be  no  insuperable  difficulty  in  distin- 
guishing between  damage  to  a  ship's  bottom  by  strand- 
ing, and  b}'  heaving  off  the  strand. 

8  o3.  If   a    steamer,    coming   alongside   a   ship    to  Damage  by 


tug  coming 


render  a  salvage  service  during  a  gale,   staves  in  the  alongside  to 

render  sal- 

ship's  bulwark,  or  does  such  other  damage  to  her  upper  vage  service. 
w^orks  as  may  fairly  be  regarded  as  the  natural  conse- 
quence of  approaching  the  vessel  at  such  a  time,  the 
damage  is,  in  practice,  treated  as  general  average.  But 
if,  through  unskilful  handling,  or  by  some  sudden  acci- 
dent, the  steamer  comes  into  collision  with  the  ship,  and 
sinks  or  seriously  injures  her,  the  case  is  not  so  treated. 
The  reason  for  this  distinction  is  that,  in  inviting  a 
steamer  to  come  alongside,  the  master  must  know  that 
some  damage  to  his  upper  works  is  extremely  probable  ; 
but  he  has  a  right  to  expect  skilful  navigation  on  the 
part  of  the  steamer,  and  he  does  not  guarantee  against 
unforeseen  accidents. 

§  34.  When  a  steamer  is  aground,  and  the  engines  Damage  by 

-•  i'i  111  p-"!        using  engine: 

are  set  or  kept  going  m  order  either  to  back  her  oft  the  to  force 
ground,  or  to  drive  her  higher  and  to  a  safer  place  on  ground. 
the  bank  or  over  it,  the  question  whether  any  damage 
suffered  by  the  machinery  from  being  so  worked  is 
admissible  as  general  average  was  not  settled  when 
Mr.  Lowndes  wrote.  On  the  principles  above  laid 
down,  a  distinction  ought  [he  said]  to  be  made  between 
the  cases  in  which  the  working  of  the  engines  in  this 
manner  does  and  does  not  expose  them  to  some 
extraordinary  danger.  In  very  many  cases,  while  the 
steamer  itself  is  aground,  the  screw  is  Avell  above  water, 
so    that   the    risk    of    damage    to    the   screw   itself   by 


142  SACRIFICES  OF  SHIP.  [CHAP.  III. 

revolving  is  no  greater  than  at  ordinary  times.  In 
such  a  case,  the  using  of  it  cannot  be  regarded  as  any 
more  than,  if  so  much  as,  the  carrying  a  press  of  sail, 
as  in  Covington  v.  Roberts ;  it  is  plainly  the  ordinary 
duty  of  using  the  ship's  materials  at  their  proper 
work,  though  under  extraordinary  circumstances.  But 
there  are  other  cases  in  which  the  screw  could  only  be 
worked  among  rocks,  or  in  sand  or  mud,  in  a  manner 
which  might  properly  be  called  abusing  it,  as  exposing 
it  to  danger  of  breakage,  or  of  sucking  in  sand  or 
mud  among  the  tubes  of  the  machinery,  in  a  manner 
unusual,  and  which  would  be  highly  improper  but  for 
the  common  danger.  Damage  done  in  this  uianner 
seems  to  be  analocrous  to  the  loss  of  sails  blown  awav 
when  set  in  order  to  force  a  ship  off  the  ground. 

[Mr.  Lowndes'  view  has  been  confirmed  by  the 
decision  of  the  Court  of  Appeal  in  The  Bona  [g).  In 
that  case  the  vessel  was  stranded  in  a  position  of  great 
danger,  and  she  was  got  off  by  working  the  engines 
full  speed  ahead  and  astern,  whereby  they  were  subjected 
to  an  unusual  strain  and  considerably  damaged. 

The  Court  of  Appeal  held  that  this  damage  was 
recoverable  in  general  average,  as  the  machinery  was 
intentionally  used,  for  the  preservation  of  the  ship  and 
cargo,  in  an  abnormal  manner  which  exposed  it  to  the 
risk  of  serious  injury.  It  was  further  held  that  the 
expenditure  of  coal  for  this  extraordinary  purpose  was 
also  to  be  allowed  in  general  average.] 


[g)  [1895]  P.    125;   cf.    TrafaJynr  using   cannel   coal,  wliicli  was  part 

>S'.<S.  Co.  y.  British  and  Foreign  Mar.  of     the    cargo,    in    an    emergency, 

Ins.  Co.,  post,  p.  ITS,  n.     In  Walford  when    the    supply    of    bunker    coal 

de  Baerdemaecker  v.  Oalindez  (1897),  had  been  exhausted,  was  allowed  in 

2  Com.  Cas.   127,  damage   done  to  general  average, 
the  boilers  of  a  steamship  through 


SECT.  XXXVI.]  VOLUNTARY  STRANDING.  143 

§  35.  I  may  conclude  this  section  by  adding  one  SaH  cut  away 

.  ,  1       •  X    •  to  save  a  spar. 

case  m  wJiich  a  sacrmce  j^urposely  made  is  not  m  prac- 
tice treated  as  general  average,  because  the  danger  is 
too  remote  ;  viz.,  when  sails  are  cut  away  to  save  a  mast 
or  spar.  It  is  argued  sometimes  that  if  tlie  spar  were  to 
go,  the  ship  and  cargo  might  be  in  danger  ;  and  if  this 
could  be  proved,  so  that  it  could  properly  be  said  that 
the  common  safety  was  in  reality  the  motive  for  cutting 
away  the  sail,  I  do  not  see  how  the  claim  could  be 
resisted.  If,  however,  as  often  is  the  case,  the  danger 
to  the  whole  were  problematical,  while  it  is  in  the  mean- 
time certain  that,  if  the  sail  be  not  cut  away,  the  mast 
must  fall,  so  that  the  so-called,  sacrifice  must  certainly 
benefit  tlie  shipowner  by  saving  his  mast,  while  any 
ulterior  benefit  to  the  cargo  is  uncertain,  it  seems  hardly 
reasonable  on  his  part  to  ask  for  compensation. 


Vo km tarij  Stranding. 

§  36.  When  a  ship  is  voluntarily  run  upon  a  sand-  Principle. 
bank,  or  scuttled,  or  purposely  sunk  in  shallow  water, 
in  order  to  escape  the  pursuit  of  an  enemy  or  the  immi- 
nent danger  of  being  dashed  to  pieces  on  rocks,  or  sinking 
in  deep  water,  or  to  extinguish  a  fire  on  board,  and  if 
the  ship  or  the  cargo  suffers  damage  by  reason  of  that 
measure,  is  such  damage  properly  the  subject  of  general 
average  ? 

The  answer  which  would  first  occur  to  perhaps  every 
one  to  whom  this  should  come  as  a  perfectly  new  ques- 
tion would  probably  be,  without  hesitation,  in  the  aflir- 
mative.  Such  damage  is  the  result  of  a  measure,  out  of 
the  ordinary  course,  taken  for  the  common  safety  and  to 
avert  an  imminent  peril,  and  involving  a  sacrifice,  viz., 
the  danger  of  almost  certain  injury  to  the  bottom  of  the 


144  SACRIFICES  OF  SHIP.  [CIIAP.  III. 

ship,  and  considerable  risk  to  the  cargo  in  the  lower 
hold,  from  leakage  caused  by  the  shock  below.  It  is 
the  substitution  of  a  danger  affecting  mainly,  if  not 
exclusively,  the  lower  portion  of  the  ship  and  cargo  for 
a  danger  of  total  loss,  that  is,  a  danger  affecting  all  parts 
equally.  In  this  sense  it  is  the  sacrifice  of  a  part  for  the 
benefit  of  the  remainder.  Accordingly,  the  rule  in  almost 
every  other  country — I  might  perliaps  say  of  every  one 
— is  to  treat  such  damage,  at  all  events  when  the  ship  is 
got  off  again,  as  general  average. 
Practice  or  For  many  years,  however,  there  has  been  a  prac- 

custom  of  .  n     1  c 

Lloyd's.  tice  amongst  iLnglish  adjusters,  called  a  custom  oi 
Lloyd's,  which  was  adopted  by  the  Adjusters'  Associa- 
tion in  the  year  1876  as  follows:  "The  custom  of 
Lloyd's  excludes  from  general  average  all  damage  to 
ship  or  cargo  resulting  from  a  voluntary  stranding. 
This  rule  does  not  necessarily  exclude  such  damage  as 
is  done  by  beaching  or  scuttling  a  burning  ship  to 
extinguish  the  tire." 

History  of  Tlic  liistoiy  aiid  origin  of  this  practice  may  be  traced 

this  practice.  nr        a 

in  Stevens  on  Average.  Mr.  btevens,  about  the  year 
181-3,  undertook  to  convince  his  readers,  on  grounds  of 
pure  theory,  that  the  then  existing  practice  was  ^vrong. 
"  It  appears,"  he  saj^s,  "  from  manuscript  adjustments  in 
my  possession,  to  have  been  the  practice  of  Lloyd's  in 
the  time  of  Weskett  to  allow  such  damage  as  general 
average"  (A).  Weskett,  writing  in  1781,  had  said: — 
"  If,  to  avoid  a  total  loss,  the  shipwreck,  &c.  being  im- 
minent, the  captain  and  crew  should  judge  it  proper  to 
run  the  ship  ashore,  the  damage  thereby  occasioned  will 
be  a  gross  (or  general)  average"  («).     The  opinion   of 

(A)  Stevens,  Chap.  1,  Art.  2;  -p.  31       Eoccus  and  Magens. 
of   5th.   edit.     Stevens   cites  on   the  (?)  AVeskett,  Insurance,  tit.  Gene- 

saine  side  the    Consolado  del  Marc,      ral  Average,  §  17. 


SECT.  XXXVI.]  VOLUNTARY  STKANDING.  145 

lawyers  in  his  day,  Stevens  admits,  was  in  favour  of 
such  claims ;  so  were  the  old  writers,  as  far  as  he  had 
traced  them.  "In  the  absence  of  modern  authority," 
he  goes  on,  ''  we  have  only  argument  against  it,  but  this 
is  strong."  1'he  arguments  he  used  for  this  purpose 
must  indeed,  one  would  think,  be  strong;  they  were 
convincing  enough  to  liave  for  many  years  transformed 
a  practice  of  Lloyd's.  So  far,  however,  from  being  im- 
pressed with  their  strength,  it  is  more  likely  at  the 
present  day  that  tlie  reader  will  agree  with  Hopkins, 
who  says,  concerning  these  arguments : — "  Tlie  reason- 
ing whicli  supports  our  practice  is  very  curious,  and 
serves  to  show  how  an  argument  that  will  not  hold  water 
is  relied  upon  and  left  unquestioned  through  a  long- 
series  of  years "  (Jc).  Stevens's  chain  of  reasoning  is 
this — general  average  must  be  something  of  the  same 
kind  as  a  jettison  of  cargo ;  now  in  jettison  some  par- 
ticular thing  is  selected  for  destruction,  but  in  volun- 
tary stranding  no  particular  thing  is  selected  for  destruc- 
tion, since  when  you  run  the  ship  ashore  you  cannot  tell 
which  particular  part  of  the  ship  or  cargo  may  suffer. 
Again,  before  jettison,  there  is  time  for  deliberation  and 
perhaps  choice  between  alternatives ;  in  voluntary  strand- 
ing, when  the  crew  expect  every  instant  to  see  the  ship 
dashed  to  pieces,  the  danger  is  so  overpowering  that 
they  can  think  only  of  saving  their  lives  (/}.  A  little 
later  he  adds  another  argument,  as  bearing  on  the  case 
when  a  ship  is  run  asliore  to  avoid  the  pursuit  of  an 
enemy,  viz.,  that  the  point  is  governed  by  the  decision 
in  Covington  v.  Rohcrh  (m),  which  establishes  that  damage 

(A;)  Hopkins,  Average   and  Ai-bi-  judgment  substantially  the  same, 
tration,  p.   '3o.      The  author,  in  his  (/)  Stevens  (5th  edit.),  pp.  32,  3;i. 

fourth  edition,  p.  80,  has  somewhat  (m)  (ISOO),  2  Bos.  &  I'ul.  (N.  E.) 

[altered  his]  language,  but  leaves  his  378 ;  ante,  §  25. 

L.  r 


146  SACRIFICES  OF  SHIP.  [CHAP.   III. 

done  by  carrying  a  press  of  canvas  for  that  purpose  is 
not  general  average.  These  are  certainly,  as  Hopkins 
says,  arguments  that  will  not  hold  water.  It  is  true  that 
the  whole  law  of  general  average  has  probably  been 
constructed  upon  the  basis  of  jettison,  and  by  analogies 
drawn  from  it ;  but  this  has  been  done  by  excluding 
from  the  analofjv,  one  after  another,  those  circumstances 
which  were  immaterial  to  the  principle  involved  ;  whereas 
Stevens's  way  of  reasoning  might  Avith  equal  justice  be 
used  to  exclude  from  general  average  the  cutting  away 
of  a  mast,  because  a  mast  is  not  thrown  overboard  but 
cut  away,  or  because  a  mast  is  not  carried  on  freight. 
If  a  thing  was  really  sacrificed,  what  does  it  matter 
whether  it  was  selected  from  other  things,  or  whether  it 
was  the  onlv  thing-  that  would  serve  :  or,  again,  if  vou 
expose  twenty  things  to  a  risk,  knowing  that  onlv  two 
or  three  things  will  suffer,  and  not  knowing  Avhich  of 
them  it  will  be,  must  you  not  give  compensation  to  the 
one  (or  two  or  three,  if  it  be  so)  which  eventually  suffers, 
just  as  if  you  had  known  beforehand,  and  had  selected 
and  thrown  out  that  one  only  ? 
Benecke.  Bcnccke,  wlio  wrotc  shortly  after  Stevens  (in  1824), 

dissents  from  him  to  a  certain  extent.  It  is  not  neces- 
sary, he  says,  to  constitute  a  general  contribution,  that 
a  specific  thing  should  be  devoted  to  certain  and  in- 
evitable destruction.  This  he  shows  b}'  the  illustration 
of  the  loss  of  goods  which  for  the  general  safety  have 
been  removed  to  a  barge,  and  are  lost  by  its  sinking, 
which,  though  there  was  no  intention  to  destroy  them, 
nor  was  this  one  barge-load  in  any  Avay  selected  for 
destruction  amongst  the  several  barges  which  have 
escaped  unhurt,  is  yet  confessedly  the  subject  of  general 
average.  We  have  now  a  more  modern  instance  of  the 
same  kind,  viz.,  damage  done  to  goods  by  water  poured 


SECT.  XXXVr.]  VOLUNTARY  STRANDING.  ^'^'' 

into  the  hold  to  extingaisli  a  lire.  But  Benecke  has  his 
own  favourite  theory,  that  there  can  be  no  general 
average  where  there  is  no  alternative  course — a  theory, 
the  modicum  of  truth  contained  in  which  has  since  been 
extracted,  and  placed  in  a  precise  form,  by  the  Court  of 
Appeal  in  Shepherd  v.  Kottgen[n),  a  form  in  which  it 
does  not  in  the  least  support  Benecke's  conclusion. 
That  conclusion  is,  that,  "If  the  situation  of  the  vessel 
were  such  as  to  admit  of  no  alternative,  so  that  w^ithout 
running  her  ashore  she  would  have  been  unavoidably 
lost,  and  that  measure  would  have  been  resorted  to  for 
the  purpose  of  saving  the  lives  or  liberty  of  the  crew, 
no  contribution  can  take  place,  because  nothing,  in  fact, 
was  sacrificed." 

'■'  But,"  says  Beuocke,  "  if  the  vessel  and  cargo  were  in  a  perilous  Benecke's 
but  not  a  desperate  situation,  and  the  measure  of  running-  her  ashore  ^^^^o'^^"^- 
were  deliberately  adopted  as  best  calculated  to  save  the  ship  and 
cargo,  in  that  ease  the  damage  sustained,  according  to  the  funda- 
mental rules,  constitutes  a  claim  for  restitution.  Suppose  that,  a 
vessel  having  sprung  a  dangerous  leak,  the  master,  in  order  to  save 
a  valuable  cargo,  determines  to  run  her  ashore  in  a  convenient  place, 
although  he  might  possibly  have  reached  a  harbour  with  the  leaky 
vessel,  at  least  if  he  had  chosen  to  throw  overboard  a  part  of  the 
cargo.  Or  suppose  him  to  adopt  the  same  measure  if,  pursued  by 
an  enemy,  he  considers  this  a  more  efficacious  method  of  effecting 
her  escape  than  lightening  the  vessel  by  jettison.  Here  we  find  all 
the  necessary  requisites  for  constituting  a  general  contribution — 
imminent  danger,  a  voluntary  determination,  and  a  sacrifice;  and  I 
can  see  no  reason  for  distinguishing  these  cases  from  that  of  goods 
being  thrown  overboard,  or  of  a  maist  being  cut  away  in  a  storm 
...  I  cannot,  for  the  above  reasons,  subscribe  to  the  opinion  of 
Mr.  Stevens,  that  a  voluntary  stranding  ought  under  no  circum- 
stances to  give  rise  to  general  contribution,  though  I  readily  admit 
that  more  mistakes  would  be  occasioned  by  considering'  every  case, 
where  the  protest  states  the  vessel  to  have  been  purposely  run  ashore, 

(/()  Sheiiherd  v.  KotUjen  (1877),  2  C.  P.  D.  585  ;  see  p.  589. 

l2 


148  SACRIFICES  OF  SHIP.  [CHAP.  III. 

as  one  of  general  average,  than  by  entirely  excluding  all  cases  of 
that  nature  "  (o). 


Arnould's 
opinion. 


The  question  lias  not  yet  come  before  the  English 
court>s(j*>).  Arnould,  however,  expresses  a  confident 
opinion  as  to  the  result  if  it  were  raised.  "  Though  the 
point,"  he  says,  "has  never  been  expressly  decided  in 
our  courts,  there  seems  little  doubt  that  they  would  hold, 
in  conformity  with  the  great  body  of  pre\T.ous  authori- 
ties, that,  at  all  events  where  the  shijD  is  subsequently 
recovered  after  a  voluntary  strandino^  so  as  to  be  able  to 
pursue  her  voyage,  the  loss  arising  therefrom  gives  a 
claim  to  a  general  average  contribution  "  (^).  There  is 
no  doubt  that,  with  the  exceptions  above  set  forth,  the 
great  current  of  authority  sets  that  way.  The  Consolado 
del  Mare,  Roccus,  Targa,  Emerigon,  Abbott,  are  cited 
bv  Arnould,  who  concludes:  "There  is  no  rule  more 
clearly  established  than  this  by  the  uniform  course  of 
maritime  law  and  usage "  (r).     Arnould,  however,  con- 


(o)  Benecke,  Insiu-ance,  p.  219.  ship  ashore,  and  the  extent  done  to 
( p)  See  note  {d),  p.  154,  infra.  In  them  irrespective  of  that  act,  the  J'ule 
Abbott  on  Shipping,  in  the  last  edition  is  good ;  but  in  those  cases  where  the 
published  in  Lord  Tenterden's  life-  facts  are  not  disputed  it  is  inequit- 
time,  it  is  laid  down  that  "damage  able,  and  might  be  overthrown  by  a 
voluntarily  done  to  a  ship  hy  cutting  legal  decision."  (Baily,  Gen.  Av. 
its  decks  and  sides  in  oi'^er  to  (2nd  edit.),  p.  41.) 
facilitate  a  necessary  jettison,  or  by  {q)  Arnould  Ins.  (2nd  edit.),  p.  917. 
running  it  on  a  rock,  shallow,  or  (r)  Arnould,  Ins.  (2nd  edit.),  p.  915. 
strand  to  avoid  the  danger  of  a  storm  The  learned  editor  of  several  later 
or  of  an  enemy,  and  the  expense  of  editions  of  Arnould's  work,  Mr.  Mac- 
recovering  the  ship  from  this  latter  lachlan,  takes  a  different  view,  hold- 
situation  ....  are  to  be  sustained  ing  in  this  matter  with  Stevens, 
bya  general  contribution."  (5th  edit.  '■  The  condition  of  the  whole  adven- 
p.  349.)  ture,"  he  says,  "is  confessedly 
Baily,  speaking  of  the  practice  of  desperate ;  and  recourse  is  had  to 
excluding  such  claims,  says,  "  As  a  that  which  cannot  be  called,  for  it  is 
general  rule,  to  prevent  disputes  as  not  even  hoped  to  be,  an  alternative, 
to  facts,  in  the  generality  of  cases.  Whether  the  result  may  be  the 
i.^.,  as  to  the  extent  of  damage  done  destruction  of  the  whole,  or  the 
to   ship   and   cargo  by  running  the  saving  of  something,  is  a  mere  chance 


■SECT.  XXXVI.]  VOLUNTARY  STRANDING. 


149 


decisions. 


Gurney. 


siders  the  point  would  be  more  doubtful,  supposing  that 
after  and  in  consequence  of  the  stranding  the  ship  be- 
comes a  total  wreck  (s). 

The  subject  has  been  dealt  with  very  thoroughly  American 
in  the  courts  of  the  United  States,  and  these  decisions 
appear  to  deserve  a  much  fuller  examination  than  they 
have  yet  received  in  any  English  treatise  on  the  subject. 

The  two  first  of  them  were  tried  in  1812, — j)erhaps 
while  Stevens  was  writing  his  book, — one  in  the  Supreme 
Court  of  Pennsylvania,  the  other  in  that  of  New  York. 

In  Sims  v.  Gurney,  tried  in  Pennsylvania,  the  ship  sims^r. 
Woodrop  Sims  was  lying  at  anchor  in  a  bay  when  a 
violent  gale  came  on,  and  one  of  her  chains  parted. 
The  master  then  asked  the  pilot  what  was  to  be  done 
in  case  the  remaining  chain  should  part,  to  which  he 
answered,  ''  If  the  chain  does  part,  I  can  do  nothing 
with  her  but  run  her  ashore  to  the  eastward."  The 
chain  did  part,  whereupon  two  sails  were  set,  and  an 
attempt  was  made  to  fetch  out  to  sea  ;  but  this  proved 
impracticable,  and  she  was  run  up  the  bay  again.  The 
master  said  to  the  pilot :  "As  we  must  go  ashore  some- 
where, had  we  not  better  put  her  on  Cape  May  ?  "  The 
pilot  said  he  would  try.     She  was  with   difficulty  run 


that  defies  ingenuity  or  calculation. 
The  act  of  putting  the  helm  about  to 
accomplish  it  is  a  blind  throw  for 
life.  The  whole  adventure  is  the 
stake  played.  And  to  risk  the  whole 
upon  the  turn  of  a  die  does  appear  to 
be  utterly  reckless,  and  not  to  be 
justified  in  view  of  the  law  excej^t 
under  the  desperate  circumstances  of 
wreck."  (6th  edit.  p.  874.)  Does 
this  mean  that  the  act  is  not  general 
average  because  there  is  no  alterna- 
tive, and  therefore  the  act  must  be 
done,  or  because  it  is  reckless,  and 
therefore  ought  not  to  be  done?     It 


can  hardly  be  both  at  the  same  time. 
If  it  sometimes  is  one,  sometimes 
the  other,  may  there  not  also  be 
times  when  it  is  neither ;  that  is  to 
say,  when  the  shij)  might  by  possi- 
bility be  saved  without  running 
aground,  yet  the  chances  against  it 
were  so  strong  that  it  was  prudent 
and  right  to  run  the  ship  aground  ? 
If  this  is  possible — and  it  certainly  is 
conceivable — Mr.  Maclachlan's  argu- 
ment leaves  all  these  cases  unprovided 
for. 

(«)  Arnould,    Ins.    (2nd   edit.),    p. 
917. 


150  SACRIFICES  OF  SHIP.  [ciIAP.  III. 

ashore  on  Cape  May,  and  was  eventually,  after  the  storm 
abated,  got  off,  though  with  damage  to  the  hull  by 
p-roundino-.  At  the  trial  the  ])ilot  stated  that  his  motive 
for  running  the  ship  ashore  on  Cape  May  was,  to  get  the 
most  convenient  place  to  save  the  ship,  crew,  and  pro- 
perty ;  that  if  her  course  had  not  been  changed  she 
must  have  gone  on  Egg  Island  Flats  ;  that  all  the  men 
in  existence  could  not  have  prevented  her  going  on 
shore — if  not  run  ashore  she  must  have  drifted  ashore  ; 
and  that  when  he  put  her  head  towards  Cape  May,  he 
had  not  an  idea  she  would  go  there,  and  told  Captain 
Heath  so  at  the  time. 

The  case  was  well  argued  on  both  sides,  and  the 
arguments,  wliich  are  very  fully  reported,  may  be  referred 
to  as  setting  forth  the  chief  grounds  of  principle  which 
may  be  urged  for  and  against  the  admission  of  such 
damage  as  general  average.  The  court  were  'unani- 
mously of  opinion  that  the  damage  must  be  so  treated. 
Tilghman,  C.  J.,  said  : — 

Tilghman,  "It  is  said  for  the  defeudauts  that  the  ship  must  have  gone 

'^'-  ^'  ashore  somewhere,  and  it  made  no  difference  Avhere  that  shore  was; 

that  there  was  no  advantage  in  taking  the  course  that  was  taken, 
and  that  the  ship  was  exposed  to  no  greater  danger  than  she  would 
have  been  if  the  course  had  not  been  altered.  It  is  not  necessary 
that  the  ship  should  be  exposed  to  greater  danger  than  she  would 
have  been,  to  make  a  case  of  general  average.  It  is  sufficient  if  a 
certain  loss  is  incurred  for  the  common  benefit.  It  seems  at  first 
view  not  very  reasonable  that  contribution  should  be  asked  for 
damage  occasioned  by  an  act  which  in  fact  was  for  the  benefit  of 
the  ship;  but  the  law  is  certainly  so,  provided  the  act  which  occa- 
sioned the  damage  was  conducive  to  the  common  safety.  In  truth, 
if  we  go  to  the  bottom  of  the  thing,  almost  every  damage  to  part  of 
a  ship,  which  can  be  the  subject  of  general  average,  is  for  the 
benefit  of  the  ship.  A  mast  is  cut  away,  in  consequence  of  which 
the  ship  is  saved:  this  is  clearly  a  general  average,  because  the 
cargo  is  also  saved,  which  would  otherwise  have  been  lost"  (t). 
{t)  Sims  V.  Gurncij  (1812),  4  Binney's  Penns.  Eep.  513,  at  p.  526. 


SECT.  XXXVI.]  VOLUNTARY  STRANDING.  151 

The  case  of  Bradhurst  v.  Columbian  Ins.  Co.,  tried  the  Bradhmstv. 

.  .  ••1  jiii'i  Columbian 

same  year,  drew  a  distinction,  similar  to  that  wnich  now  im.  Co. 
prevails  in  the  law  oi"   Germany,  between  a  voluntary 
stranding  followed    by  recovery  of   the  ship   and    one 
followed  by  a  total  loss. 

A  ship  at  anchor  in  the  Texel  having  drifted  from 
her  anchors  in  a  violent  gale,  and  being  in  danger  of 
running  foul  of  other  vessels,  the  master  cut  the  cables 
and  ran  for  the  shore.  She  was  steered  for  the  Zuydwall, 
on  approaching  which  she  struck  and  beat  with  great 
violence,  and  having  no  anchors  or  cables  she  was  driven 
bv  the  violence  of  the  wind  hig-h  on  the  shore.  Some  of 
the  cargo  was  saved,  but  the  ship  became  a  total  loss. 
An  action  was  brought  by  the  shipowner  against  his 
underwriters  for  a  total  loss,  which  was  resisted  on  the 
ground  that  the  damage  by  the  stranding  was  the  subject 
of  general  average,  and  that,  as  the  ship  and  cargo 
belonged  to  the  same  person,  there  should  be  a  deduction 
for  the  cargo's  share  of  contribution.  The  first  question, 
therefore,  was,  whether  this  damage  formed  a  general 
average. 

Kent,  C.  J.,  said :  ^^»^  o.  J. 

"  If  a  ship,  in  a  case  of  extremity  aud  to  avoid  impending- 
danger,  be  voluntarily  run  ashore,  and  she  is  afterwards  recovered 
and  performs  the  voyage,  the  damages  resulting  from  this  sacrifice 
are  to  be  borne  as  general  average.  There  cannot  be  a  doubt  as 
to  the  existence  of  this  rule,  for  it  is  to  be  met  with  in  all  the  books 
that  treat  of  contribution.  But  another  and  more  difficult  question 
is,  whether  there  is  to  be  a  contribution  from  the  survivino-  carffo, 
if  the  ship  should  happen,  as  in  this  case,  to  be  destroyed  and  lost 
by  the  act  of  running-  her  ashore  "  (p.  14). 

The  learned  judge,  then,  after  citing  the  various 
foreign  authorities,  and  concluding  that  the  balance  of 


152  SACRIFICES  OF  SHIP.  [CHAP.  III. 

their  weight  is  against  the  claim  for  contribution  if  the 
ship  be  lost,  continues : 

"  These  autliorities  are  founded  on  sound  principles,  for  the 
loss  of  the  ship  in  these  cases  is  more  imputable  to  casualty  than 
design.  When  a  ship  is  voluntarily  run  ashore,  it  does  not,  of  course, 
follow  that  she  is  to  be  lost.  The  intention  is  not  to  destroy  the 
ship,  but  to  j)lace  her  in  less  peril,  and  if  she  afterwards  goes  to 
pieces,  or  is  otherwise  lost,  it  is  not  to  be  attributed  exclusively 
to  the  act  of  the  master,  biit  to  the  direct  and  more  immediate 
operation  of  other  causes.  In  most  cases  he  has  no  expectation,  and 
certainly  no  intention,  of  destroying  the  vessel.  He  does  an  act 
hazardous  to  the  vessel  and  cargo,  in  order  to  escape  from  a  more 
pressing  danger,  as  a  storm,  or  the  pursuit  of  an  enemy  or  pirate. 
The  stranding  may  be  an  act  done  for  the  common  safety,  but  this 
cannot  be  said  to  be  the  case  of  the  subsequent  shipwreck  or  capture. 
Indeed,  the  very  act  of  running  the  ship  ashore  is  desperate,  and 
places  the  cargo  in  extreme  jeopardy;  and  if  it  happens  that  the 
ship  is  lost  and  the  cargo  saved,  it  is  saved  tanquam  ex  incendio, 
according  to  the  allusion  in  the  Rhodian  law.  In  such  a  case  it  is 
emphatically  said  to  be  'save  who  can,'  and  to  burden  the  rescued 
cargo  with  contribution  for  the  ship  would  seem  to  be  oppressive, 
and  is  clearly  not  within  the  policy  and  equity  of  the  rule  "  (m). 

The  court  accordingly  held  unanimousl)^  that  this 
loss  was  not  general  average. 
This  decision  This  dccision,  it  appears,  gave  rise  to  much  discus- 

sion. Exception  was  taken  to  it  by  Mr.  Justice  Story, 
in  a  note  to  his  edition  of  Abbott  on  Shipping  {x). 
Decisions  diametrically  opposed  to  it  were  given  in  the 
cases  of  Case  v.  Rcilly  (i/),  and  Grai/  v.  Wain  (5'),  both 
in  Pennsylvania.  And  ultimately,  in  1(S39,  the  Supreme 
Court  of  the  United  States,  by  a  unanimous  judgment, 

(;/)  Bradhurst   v.    Columbian    Ins.  Howard's  S.  C.  Rep.  at  p.  273. 
Co.  (1812),  9  Johnson's  N.  Y.  Eep.  (?/)  Cuze  v.  Reillij  (1814),  3  Wash, 

p.  9,  at  p.  16.  Cii\  Ct.  298  ;  Fed.  Cas.  2538. 

(cb)  4th   (American)   edit.  p.  349;  (z)  Gray   v.    Wain  (1816),   2  Ser- 

see  Mr.    Boardmau's    argument    in  geant  &  Eawle,  Penns.  Rep.  228. 
Barnard     v.      Adams      (1850),      10 


SECT.  XXXVI.]  VOLUNTARY  STRANDING.  153 

formally  reversed  the  conclusion  come  to  in  BradJmrst 
V.  Columbian  Ins.  Co.,  and  established  the  rule,  now 
universally  acted  on  throughout  the  United  States,  that 
a  voluntary  stranding  is  equally  the  subject  of  general 
average,  whether  the  stranded  ship  is  afterwards  saved 
and  repaired,  or  is  totally  lost  by  the  stranding  [a). 

The  case  was  this :  The  brig  Hope,  going  down  Columbian 
Chesapeake  Bay,  found  the  weather  too  bad  to  proceed  Ashby.' 
to  sea,  and  bore  away  for  a  projecting  headland  in  the 
Bay,  called  Sewell's  Point,  where  she  anchored.  On  the 
second  and  following  day  the  gale  increased  in  violence ; 
the  brig  dragged  her  anchors  from  time  to  time,  till 
finally  she  struck  on  the  shoals,  and  her  head  swinging 
round  brought  her  broadside  to  the  wind  and  a  heavy 
sea.  In  this  situation  the  captain,  finding  no  other 
possible  chance  of  saving  the  ship  and  cargo,  and  pre- 
serving the  lives  of  the  crew,  slipped  his  cables  and  ran 
the  brig  ashore  as  high  up  the  beach  as  possible,  where, 
after  the  storm,  she  was  left  high  and  dry,  and  there 
was  no  possibility  of  getting  her  off.  The  cargo  was 
saved  (Z»). 

The  unanimous  opinion  of  the  court,  that  this  loss 
was  the  subject  of  general  average,  was  delivered  by 
Mr.  Justice  Story,  who,  "  after  examining,"  as  Arnould 
says,  "  all  the  learning  on  the  subject,  from  the  Digest 
downwards  "  (c),  thus  states  succinctly  the  grounds  of  his 
decision : 

"  The  intention  is  not  to  destroy  the  ship,  but  to  place  her  in  story,  J. 

(«)  "  This    judgment,"    says   Ai--  this  point  was  finally  settled  in  the 

nould  (2nd  edit.),  jd.  919,   "is  well  United    States    by    this    judgment, 

worth    consulting    in    the    original  (Kent's  Comm.  vol.   3  (edit.    1844), 

report."     The   great  lawyer,   whoso  p.  239,  note  (&).) 

opinion  Mr.  Justice  Story  thus  over-  (h)  Arn.  Ins.  (2nd  edit),  918. 

ruled,  had  the  magnanimity  to  say,  (c)  See  note  at  end  of  this  Chapter, 
in  his  Commentaries,  that  the  law  on 


154  SACRIFICKS  OF  SHIP.  [CHAP.  III. 

le^is  jjeril,  if  possible,  as  well  as  the  cargo.  The  act  is  hazardous 
to  the  ship  and  cargo,  but  is  done  to  escape  from  a  more  pressing 
danger;  it  is  done  for  the  common  safety;  and  if  the  salvation  of 
the  cargo  is  accomplished  thereby,  it  is  difficult  to  perceive  why, 
because  from  inevitable  calamity  the  damage  has  exceeded  the 
expectation  or  intention  of  the  parties,  the  whole  sacrifice  should 
be  borne  by  the  shipowner,  when  ho  has  thereby  accomplished  the 
safety  of  the  cargo  "  (d). 

Question  of  To  determine  precisely  what  is  a  voluntary  strand- 

a  voluntary  iwg  may  not  always  be  easy,  and  several  of  the  American 
decisions  tm^n  upon  this  question  of  fact.  Thus,  in  one 
case,  where  the  captain  cut  his  cable  and  hoisted  sail 
with  the  intention  of  running  out  to  sea,  but  this  failing, 
by  reason  of  the  sail  being  blown  awa}^,  the  ship  became 
ungovernable  and  was  drifted  ashore,  this  was  pronounced 
not  to  be  a  voluntary  stranding.  ''  An  accidental  loss," 
said  Gibson,  J.,  "which  happens  in  an  endeavour  to 
bring  about  a  very  different  event,  is  not  a  subject  of 
compensation.  ...  If  there  were  in  fact  an  inten- 
tion to  run  the  vessel  ashore,  there  was  no  act  done  in 
pursuance  of  it,  for  the  vessel  became  ungovernable  the 
instant  the  cables  w^ere  cut,  and  was  driven  on  the  rocks 
exclusively  by  the  agency  of  the  wind  and  the  waves  "  (e). 
But  if,  while  the  master  is  running  the  ship  for  one  point 
on  the  strand,  she  takes  the  ground  on  another  and  is 
lost,  that  loss  is  general  average.  "  The  third  ground,'" 
says  Sprague,  J.,  "  on  which  it  is  attempted  to  distin- 
guish the  cases  is,  that  there  was  no  intent  to  strike  on 
that  particular  rock.  But  there  was  an  intent  to  change 
the  position  of  the  vessel,  and  to  run  her  ashore  in  a 

(d)  Columbian   Ins.   Co.  v.  AsJiby  be  the  same  as  that  laid  down  in  this 

(1839),   13  Pet.  343.     In   Iredah  v.  case. 

China    Traders'   Ins.    Co.,    [1899]    2  (e)  Walker  v.  U.  S.  Ins.  Co.  (1821), 

Q.  B.   356,  at  p.   363,   Bigham,   J.,  11  Serg.  &  Eawle's  Penns.  Eep.  61, 

said,  that   he   believed  the  EngHsh  at  p.  65. 
law   as    to    voluntary   stranding    to 


SECT. 


XXXVI.] 


VOLUNTARY  STRANDING. 


155 


different  place  from  that  to  which  she  was  driftino-  •  and 
the  accidental  striking  cannot  be  considered  as  affecting- 
the  intent "(/). 

In  one  of  these  cases,  Barnard  v.  Adams,  it  is  laid  Bamardx. 

,  ,  .  Adanis. 

down  HI  the  most  unequivocal  manner  that  if  a  ship  stranding 
must  inevitably  ground  somewhere,  and  the  only  act  of  pi  "''*''^  '^ 
volition  consists  in  selecting  a  place  for  grounding  where 
she  will  suffer  least,  this  is  enough  :  the  damaj^e  done  is 
general  average.  At  the  trial  the  facts  were  admitted  ; 
and  it  was  conceded  that,  under  the  circumstances,  the 
grounding  at  one  place  or  another  was  inevitable.  The 
counsel  for  the  ]3laintiff  put  his  argument  broadly  on  the 
ground  that  in  that  respect  the  present  claim  was  on  the 
same  footing  as  every  other  general  average  sacrifice. 


ace  selected, 
though  ship 
must  groimd 
somewhere. 


(/)  Fceay.  Cutler  {IS^G),  1  Sprague, 
135. 

In  Sturgess  v.  Cary{lHo'i),  2  Curtis, 
Cir.  Ct.  59,  the  vessel  was  dragging 
her  anchors,  and  in  great  danger  of 
being  beaten  to  pieces  on  the  rocks 
before  she  reached  the  shore.  The 
master  slipped  his  anchor  and  let  her 
ground  on  the  beach,  and  the  cargo 
was  saved.  It  was  held  that  the  loss 
of  the  ship  was  general  average, 
though  the  actual  place  of  stranding 
was  not  selected.  "  AATiat  is  de- 
nominated a  sacrifice,"  said  the  court, 
"means  not  that  its  subject  is  de- 
stroyed, or  even  subjected  to  a 
greater  danger  than  before,  but  that 
it  is  selected  to  suffer  alone,  and  thus 
avert  the  common  peril." 

In  The  Star  (/ Hope  {1869),  9  Wall. 
203,  the  vessel  was  on  fire  close  to  a 
rocky  shore,  ou  the  Patagonian  coast, 
where  she  could  not  be  beached. 
The  master  determined  to  run  her 
into  a  bay  unknown  to  him,  and  in 
doing  so  she  grounded  and  struck 
fast  and  was  damaged,  but  the  water 
which   she  made  in  consequence  of 


the  damage  put  out  the  fire,  and 
eventually  both  ship  and  cargo  were 
saved.  The  >Supreme  Court  held  that 
there  was  a  voluntary  stranding, 
although  the  master  did  not  know 
of  the  existence  of  the  particular 
bank  on  which  the  ship  grounded, 
as  he  was  aware  of  the  possibility 
that  she  would  ground.  It  is  not 
stated  in  the  report  that  the  master 
intended  to  run  the  ship  ashore  in 
the  bay.  If  he  did  not,  the  ground 
of  the  decision ,  viz. ,  that  the  stranding 
was  voluntary,  is  open  to  criticism; 
but  the  decision  itself  may  be  justified 
on  the  ground  that  going  into  the 
baj'  was  a  general  average  act,  of 
which  the  damage  suffered  by  the 
ship  was  the  consequence. 

It  has  been  held  that  where  the 
intention  was  to  run  the  vessel  ashore 
on  a  sandy  beach,  which  turned  out 
contrarj'  to  the  master's  belief  to 
be  mud,  the  resulting  damage  was 
general  average.  [Norwich  and  N. 
Y.  Transport  Co.  v.  Ins.  Co.  of  North 
America  (1902),  118  Fed.  R.  307.) 


156  SACRIFICES  OF  SHIP.  [cHAP.  III. 

"  The  idea,"'  lie  said,  ''  that  any  of  the  sacrifices  at  sea  in  times 
of  peril  are  voluntary,  in  any  ordinary  sense  of  the  word,  is  quite 
erroneous.  It  is  an  act  of  the  will  under  the  sternest  pressure  of 
necessity.  The  alternatives  are,  total  loss  if  nothing-  is  done,  a 
lighter  loss  if  the  danger  is  hastened.  This  is  all  the  choice.  .  .  . 
It  is,  nevertheless,  aU  the  voluntary  act  which  remains  to  the  master 
to  perform.  On  its  being  performed  with  coolness,  courage,  and 
discretion,  the  whole  property,  and  the  lives  of  all,  depend.  That 
this  small  amount  of  volition  may  be  exercised  freely  and  without 
hesitation,  the  policy  of  the  law  tenders  to  the  officer  the  indemnity 
of  a  general  contribution  "  (^). 

And  this  was  the  view  taken  by  the  majorit}^  of  the 
court. 

Grier,  J.  "  The  assertion,  so    much   relied    on   in    the    argument,"  said 

Grier,  J.,   "that  if  the  peril  be  inevitable  there  can  be  no  con- 
tribution, seems,  when  more  caref-ully  stated,  to  be  this:    that,  if 
the  common  peril  was  of  such  a  nature  that  the  jactus,  or  thing 
east  away  to  preserve  the  rest,  would  have  perished  anyhow,  or 
perished  inevitably,  even  if  it  had  not  been  selected  to  suffer  in  place 
of  the  whole,  there  can  be  no  contribution.     If  this  be  the  meaning 
of  the  proposition,  and  we  can  discover  no  other,  it  is  a  denial  of 
the  whole  doctrine  upon  which  the  claim  for  general  average  has 
its  foundation.    For  the  master  of  the  ship  would  not  be  justified  in 
casting  a  part  of  the  cargo  into  the  sea,  or  slipping  his  anchor,  or 
cutting  away  his  masts,  or  stranding  his  vessel,  unless  compelled 
to  it  by  the  necessity  of  the  case,  in  order  to  save  ship  and  cargo, 
or  one  of  them,  from  an  imminent  peril  which  threatened  their 
common  destruction.     The  necessity  of  the  case  must  compel  him 
to  choose  between  the  loss  of  the  whole  and  part;   and,  however 
metaphysicians  may  stumble  at  the  assertion,  it  is  this  forced  choice 
which  is  necessary  to  justify  the  master  in  making  a  sacrifice  (as 
it  is  called)  of  a  part  for  the  whole.    ...    If  the  case  does  not 
show  that  the  jettison  was  indispensable,  in  order  to    escape    the 
common  peril,  the  master  would  himself  be  liable  for  the  loss  con- 
sequent thereon.     .     .    ."     The  learned  judge  illustrated  this  by 
the  case  of  a  jettison.     "  But  suppose,"  he  added,  "the  ship  cannot 
be  saved  by  casting  the  cargo  into  the  sea,  but  the  cargo,  which  is 
of  far  greater  value,  can  be  saved  by  casting  the  vessel  on  the  land, 

{(j)  Barnard  v.  Adams  (1850),  10  Howard's  S.  C.  Eep.  270,  at  p.  286. 


SECT.  XXXVI.]  VOLUNTARY  STRANDING. 


157 


or  stranding  her,  .  .  .  the  imminent  destruction  of  the  whole  has 
been  evaded,  as  a  whole,  and  part  saved,  by  transferring  the  whole 
peril  to  another  parff/i). 


PhilUps. 


Daniel,  J.,  dissented  ;  but  the  other  judges  concurred 
with  Grier,  J. 

Notwithstanding  the  authority  due  to  this  decision,  Opinion  of 
which,  as  Daniel,  J.,  said  in  his  judgment,  being  "  the 
revised  and  re-affirmed  doctrine  of  the  Supreme  Court  of 
the  United  States,  must  control  the  question  of  general 
average  in  the  courts  of  the  United  States,"  we  should 
ajDparently  not  be  warranted  in  concluding — as  this  judg- 
ment by  itself  would  naturally  lead  us  to  conclude — that 
in  America  every  case  of  voluntary  stranding  is  treated 
as  a  general  average.  This  is  not  the  conclusion  drawn 
either  by  Phillips  or  Parsons.  The  former  says,  in  effect, 
that  in  these  questions  we  always  have  to  inquire  whether 
the  stranding  as  determined  by  volition  is  or  is  not  the 
same  strandmr/  as  that  which  w^as  inevitable  in  case  there 
had  been  no  interference  of  volition ;  a  question,  he 
observes,  of  fact  and  not  of  doctrine,  and  one  not  easily 
answered  in  some  cases  (^).  Parsons  cites  in  a  note  some 
portions  of  the  judgment  of  Ellsworth,  J.,  in  a  case  in 
the  Supreme  Court  of  Connecticut,  which  I  had  passed 
over,  regarding  them  as  mere  obiter  dicta,  and,  having 
regard  to  the  context  (k),  as  of  no  great  authority  ;  but 
which,  for  the  sake  of  completeness,  I  will  here  set  forth  : 


Slater  v.  Jla;/- 
tvard  Rubber 
Co. 


(A)  lb.  at  p.  304. 

(0  2  Phill.  Ins.  §  1313.  This  view 
is  borne  out  by  a  fairly  recent  case, 
{Shoe  V.  Low  Moor  Iron  Co.  (1891), 
49  Fed.  E.  252.)  The  ship  was 
dragging  her  anchor  and  was  bound 
to  go  ashore  ;  the  master  slijjped  her 
cable  and  voluntarily  stranded  her, 
but  (it  was  found)  in  substantially  tlie 
same  place  and  with  the  same  results 


as  would  have  followed  from  the 
dragging.  It  was  held  that  this  was 
not  a  case  for  general  average. 

(/.•)  There  are  several  things  in  this 
judgment  somewhat  jiaradoxical,  e.(j., 
the  remark  that  fire  is  not  such  a 
l^eril  as  can  give  rise  to  a  claim  for 
general  average.  But  the  passage 
quoted  presents  an  argument  which 
has  in  itself  great  force. 


158  SACRIFICES  OF  SHIP.  [ciIAP.  III. 

— "  Now  to  me,"  said  the  learned  jud<i-e,  "  it  seems  little 
less  than  a  paradox  that  if  a  captain  whose  vessel  is 
doomed  to  destruction  by  stranding,  should  consider  and 
select,  for  his  compulsory  going  ashore,  the  place  least 
perilous  to  himself  and  vessel,  and  least  destructive  to 
what  might  happen  to  escape  the  general  destruction, 
such  preference  is  the  incurring  a  voluntary  sacrifice 
which  entitles  him  to  call  for  contribution.  '  Save  him- 
self, who  can,'  is  a  maxim  much  more  applicable  to  such 
a  case.  AVheii  a  captain  finds  that  his  vessel  must  go  on 
shore,  and  he  exerts  himself  to  go  on  in  a  safer  place 
rather  than  a  more  dangerous  one,  he  no  more  makes  a 
voluntary  sacrifice  than  when,  in  navigating  his  vessel, 
he  chooses  a  safe  channel  rather  than  a  more  hazardous 
one,  or  changes  his  course  to  avoid  a  rock  or  shoal. 
He  does  his  plain  duty  to  the  general  interest  to  mitigate 
an  unavoidable  calamity,  but  not  at  all  in  any  sense  to 
make  a  loss  by  selecting  a  jjart  to  be  sacrificed  in  order 
to  ensure  safety  to  the  rest(/).  And,  conformably  rather 
to  the  doctrine  here  laid  down  as  a  mere  dictum  (for  the 
question  before  the  court  for  decision  was  not  one  of 
voluntary  stranding,  but  of  jettison  from  deck)  by  the 
court  of  a  single  State  than  to  the  express  decision  of  the 
Supreme  Court  of  the  United  States,  Parsons  sums  up 
the  principle  which  he  thinks  must  govern  all  these  cases 
as  follows :  — 

Oiniiion  of  "There  must  be  a  voluntary  sacrifice  of  some  positive  value. 

If,  then,  the  ship  must  inevitably  be  cast  upon  the  shore,  and  all 
that  the  master  does  is  to  select  a  place,  a  time^  or  a  mode  of  stranding- 
her,  we  should  say  that  this  is  not  that  voluntary  sacrifice  which 
the  law  of  general  average  reqiiires,  and  therefore  is  not  an  average 
loss.  All  that  the  master  did  was  to  strand  in  such  a  wa}^  as  to 
give  him  a  better  hope  of  saving  the  ship  itself,  her  cargo,  and  the 

{I)  Slater  v.  Iluyward  liuhber  Co.  (1857),  26  Conn.  128,  139. 


SECT.  XXX VI. J  VOLUNTARY  STRANDING.  159 

lives  of  those  on  board.  Moreover,  if  the  ship  is  to  be  contributed 
for,  it  should  only  be  on  the  value  which  she  possessed  at  the  time 
and  in  the  condition  in  which  she  was  when  the  eai3tain,  abandoning- 
all  other  hope,  endeavoured  to  choose  his  place;  and  this  value 
would  seem  to  be,  in  the  case  supposed,  nothing-.  But  if  the  master 
had  a  substantial  and  valuable  chance  of  saving-  the  cargo,  then 
the  cargo  should  contribute  to  repay  the  loss,  although  the  chance 
thus  thrown  aAvay  was  less,  and  even  much  less,  than  a  proba- 
bility "  (ni). 

I  may  [said  Mr.  Lowndes]  conclude  this  collection  state  of  law 
of  materials  for  forming  a  judgment  on  the  question  bv  country. 
pointing  out  that,  at  present,  the  practice  in  this  countr}^ 
is  in  a  very  unsettled  state,  and  opinions  are  by  no  means 
agreed.  [The  English  average  adjusters,  however, 
adhere  in  practice  to  the  rule  of  their  Association,  which 
has  already  been  cited  (n).'] 

When  a  ship  is  voluntarily  stranded,  or  scuttled,  in  strandin-  to 
order  to  extinguish  a  fire,  there  have  been  several  cases  ^"^^  °"'  ^'^''' 
in  which  the  damage  done  to  the  ship  by  the  stranding 
has  been  treated  by  adjusters  as  general  average,  and 
settled  without  dispute  (o). 

A  large  steamer.  The  Senegal,  having  on  board  acaseofrA^^ 
very  valuable  cargo,  and  many  passengers,  was  skirting  ^^"^^''^■ 
the  coast  of  Grand  Canary,  intending  to  call  at  Las 
Palmas,  a  port  on  the  north  end  of  that  island,  on  lier 
return  voyage  from  Africa  for  Liverpool,  when  unfor- 
tunately she  struck  or  grazed  on  a  sunken  rock  not  laid 
down  in  the  chart.  Her  way  was  not  stopped,  Ijut  a 
large  rent  was  made  in  the  plates  of  her  side  below 
water,  through  wliich  the  water  rushed  with  such  force 
that  the  master  feared  that,  though  she  Avas  then  only 

{m)  2  Parsons,  Ins.  p.  243.  J.,  held  that  the  damage  to  cargo  by 

('0  Ante,  p.  144.  scuttling   a   burning   ship   must   be 

(o)  In  Pajiuijanni  v.  Orampian  S.S.  treated  as  general  average. 
Co.  (189G),  1  Com.  Cas.  448,  Mathew, 


16^  SACRIFICES  OF  SHIP.  [CHAP.  III. 

about  twelve  miles  from  Las  Palmas,  she  would  sink  in 
dee23  water  before  reaching  it.  He  could  not  be  certain 
of  this,  but  the  risk  was  too  great  to  run,  especially 
considering  the  risk  of  life.  Accordingly,  seeing  a 
sandy  beach  to  his  lee,  he  caused  the  ship's  helm  to  be 
altered,  and  ran  her  aground,  high  on  the  beach,  on  the 
coast  of  Grand  Canary,  about  nine  miles  south  of  Las 
Palmas.  She  remained  in  that  position,  before  she 
could  be  floated,  for  about  three  weeks ;  during  which 
time,  from  pounding  on  the  sand,  and  on  the  rock  which 
proved  to  be  underneath  it,  her  keel  and  forefoot  suffered 
considerable  damage.  Eventually  she  was  ffot  off,  and 
brought  home  most  of  her  cargo. 

In  this  case  the  damage  done  to  the  keel  and  fore- 
foot, with  other  damage  done  to  the  ship  and  cargo  in 
the  lower  hold  by  the  voluntary  stranding,  was  treated 
by  the  adjuster  as  general  average.  This  having  been 
disputed,  it  was  agreed  that  the  question  should  be 
determined  by  a  referee  to  be  appointed  by  the  chair- 
man of  the  Adjusters'  Association.  The  chairman  ap- 
pointed a  queen's  counsel,  eminent  especially  in  matters 
of  insurance ;  and  this  referee  pronounced  that  the 
damage  was  rightly  so  treated.  This  was  in  the  year 
1882. 
York  and  Tumiug  back  for  a  moment  to  the  years   1860  to 

Antwerp  ^  *^ 

Rules.  1876,  this  subject  engaged  the  attention  of  the  adjusters 

and  other  representatives  of  commercial  interests  in 
Europe  and  America,  at  the  several  meetings  which  led 
to  the  construction  of  the  York  and  Antwerp  Rules.  At 
York,  in  1864,  it  was  resolved  :  "  When  a  ship  is  inten- 
tionally run  on  shore  because  she  is  sinking  or  driving 
on  shore  or  rocks,  no  damage  caused  to  the  ship,  the 
cargo,  and  the  freight,  or  any  of  them,  by  such  inten- 
tional running  on  shore,  shall  be  made  good  as  general 


SECT.  XXXVI.]  VOLUNTARY  STEANDING.  ^^^ 

average."  And  the  York  rule  was  adopted  in  1876  at 
Antwerp.  It  was  understood,  I  believe,  that  this  rule 
was  only  applicable  to  a  stranding  in  extremis^  when  a 
loss  was  inevitable,  and  it  may  be  read  in  this  sense  ;  but 
the  vagueness  of  the  terms  used  is  to  be  regretted.  [The 
rule  was  modified  at  the  Liverpool  Conference  in  1890, 
and  the  present  rule  is  as  follows  :  ''  When  a  ship  is 
intentionally  run  on  shore,  and  the  circumstances  are 
such  that  if  that  course  were  not  adopted  she  would 
inevitably  sink,  or  drive  on  shore  or  on  rocks,  no  loss  or 
damage  caused  to  the  ship,  cargo,  and  freight,  or  any  of 
them  by  such  intentional  running  on  shore  shall  be  made 
good  as  general  average.  But  in  all  other  cases  where  a 
ship  is  intentionally  run  on  shore  for  the  common  safety, 
the  consequent  loss  or  damage  shall  be  allowed  as  general 
average."] 

The  question  has  also  been  several  times  discussed  Adjusters' 

^  _      ^  _  Associatiou. 

in  the  Adjusters'  Association  [p).     An  attempt,  in  1881, 
to  carry  a  resolution   broadly  pronouncing  all   damage 
caused  by  voluntary  stranding  to  be   general   average, 
was  negatived  :  so  was  a  resolution,  proposed  in   1888, 
to  treat  in  that  way  damage  done  by  a  voluntary  strand- 
ing, when  the  object  was   to  prevent  the  sinking  of  a 
ship,    and   when    the    stranded    sliip    was    subsequently 
floated.     Eventually,  in  1884,  on   the  suggestion  of  the 
late  lamented  William  Richards,  a  resolution  was  brought 
forward  in   the   following    terms  :   ''  That    a  voluntary 
stranding,  when  it  involves   a  real  sacrifice,  gives  the 
right  to  contribution  as  general   average."     This  reso- 
lution was   twice  carried   by  majorities,  first  as  a  pro- 
bationary rule  by  15  to   11,  and  then,  on  confirmation, 
as  the  rules  require,  the  year  following,   by   18  to   12. 

(p)  See   their   printed  Reports  of       pp.  65— 80;    1884,  pp.  38 — 40;    and 
Proceediugs,  1881,  pp.  33—43  ;   1883,       1885,  pp.  24—27. 

L.  M 


162 


SACRIFICES  OF  SHIP. 


[chap.  III. 


This  latter  majority,  however,  not  amounting  to  the 
requisite  two-thirds,  it  does  not  stand  as  a  rule  binding 
on  the  members. 


Conclusion. 


Must  be  a 
real  sacrifice. 


Barnard  v. 
Adams  ques- 
tioned. 


Having  thus,  to  the  best  of  my  ability,  put  together 
the  materials  for  forming  a  judgment  on  this  yet  un- 
determined question,  all  that  remains  is  to  set  down  the 
opinion  I  have  myself  formed  as  to  the  right  method  of 
treating  these  cases  as  they  arise  in  practice,  pending 
further  instructions  from  the  Superior  Courts. 

To  constitute  general  average  there  must  be  a  sacri- 
fice, a  something  quod  datum  est,  and  this,  of  course,  must 
be  real ;  conversely,  whenever  there  is  a  real  sacrifice  or 
thing  given  for  the  whole,  that  which  is  so  sacrificed  or 
given  must  be  replaced  as  general  average.  So  far  the 
English  courts  have  distinctly  pronounced-themselves  to 
be  in  accord  with  the  rest  of  the  world.  The  resolution 
of  the  Association  is,  indeed,  not  simply  true,  but  a  truism. 
It  has  a  value,  however,  in  that  it  calls  attention  to  the 
fact  that  the  difficulty  of  laying  down  one  common  rule 
for  voluntary  stranding  lies  in  this,  that  in  some  such 
strandings  there  is,  and  in  others  there  is  not,  a  real 
sacrifice.  Take,  for  example,  the  American  case,  above 
set  forth,  of  Barnard  v.  Adams  (q).  There,  it  was  ad- 
mitted that  the  ship  must  take  the  ground  somewhere, 
and  all  that  was  done  was  to  choose  a  place  where  she 
should  suffer  the  least  hurt.  Where  is  the  sacrifice? 
What,  in  any  sense,  can  be  said  to  have  been  ffiven  for 
the  whole  ?  The  arguments  on  either  side  are  before 
us ;  but  I  do  not  find  those  of  the  court,  authority  apart, 
to  be  satisfactory.  It  can  hardly  be  admitted  that  the 
master's  authority  to  make  a  sacrifice,  e.(/.  a  jettison,  is 


{q)  Ante,  p.  155. 


4SECT.  XXXVI.]  VOLUNTARY  STRANDING. 


163 


limited  to  the  case  in  which  the  ship  must  necessaribj  be 
lost  if  he  does  not  make  it ;  it  surely  suffices  if  the  risk 
of  loss  is  so  great  that  a  prudent  man  would  prefer  the 
certain  loss  of,  or  all  but  certain  damage  to,  a  part  to 
that  degree  of  risk  of  losing  the  whole.  In  jettison  it 
may  almost  always  be  truly  said  that,  however  desperate 
the  danger  to  the  ship,  the  goods  would  be  better  off, 
and  have  a  better  chance  of  safety,  if  left  where  they 
are,  than  if  thrown  into  the  sea;  in  jettison,  therefore, 
there  almost  always  is  a  real  sacrifice — so  nearly  always, 
indeed,  that  the  small  residuum  may  be  ignored  for  the 
sake  of  a  general  rule.  In  cases  like  that  of  Barnard  v. 
Adams,  on  the  other  hand,  where  it  is  admitted,  or  where 
it  can  be  proved,  that  a  grounding  somewhere  is  certain^ 
there  is  no  part  either  of  the  ship  or  cargo  which  is  in  a 
worse  position,  or  exposed  to  a  greater  peril,  by  being 
placed  on  a  soft  or  smooth  bed  rather  than  on  one  rockier 
or  more  uneven  or  more  exposed  to  the  weather  (r).  No 
part,  then,  either  of  the  ship  or  cargo,  is  in  any  sense 
sacrificed,  and  the  analogy  with  jettison  seems  completely 
to  break  down.     It  fails,  not  in  the  way  Stevens  en- 


(r)  The  argument  is  questionable. 
A  measure  is  taken  which  exposes 
one  part  of  the  adventure  to  a  greater 
risk  than  the  rest  (see  next  page). 
The  one  part  has  thereby  been  lost 
or  suffered  damage,  the  rest  has  been 
placed  in  safety.  This  seems  jjrimd 
facie  a  sufficient  reason  for  allowing 
the  loss  or  damage  in  general  average. 
The  argument  that  no  part  of  the 
adventure  has  been  placed  in  a  worse 
position  than  before  is  unsound,  if, 
as  Mr.  Lowndes  remarks  in  discussing 
another,  but  analogous,  class  of  cases, 
it  is  "  beside  the  question  to  inquire 
as  to  the  ultimate  fate  of  the  whole 
adventui'e  in  case  the  sacrifice  were 


not  made."  [Infra,  p.  165.)  The 
narrower  argument  that  the  thing 
sacrificed  is  not  in  a  worse  position 
than  before  would  be  a  legitimate 
one  only  in  the  case  of  "wreck"; 
and  Mr.  Lowndes  has  himself  sup- 
plied an  answer  to  the  argument  that 
this  case  should  be  treated  as  one  of 
wreck.  {Infra,  p.  165.)  It  is  sub- 
mitted that  the  distinction  which 
Mr.  Lowndes  draws  between  a 
voluntary  stranding  to  escape  from 
stranding  in  a  different  place,  and  a 
voluntary  stranding  to  escape  from 
a  loss  by  a  different  peril,  cannot  be 
maintained. 


m2 


164 


SACRIFICES  OF  SHIP. 


[chap.  III. 


deavours  to  make  out  a  failure  for  all  cases  of  voluntary 
stranding,  not  in  this  or  that  circumstance  which  may 
be  unessential,  but  in  that  which  is  confessedly  of  its 
very  essence,  viz.,  in  the  absence  of  a  sacrifice  for  the 
whole  (s). 

A  second  class  of  cases  stand  on  different  ground, 
viz.,  where  it  still  is  admitted  or  can  be  proved  that, 
unless  the  ship  be  run  ashore,  her  loss  is  certain  or 
inevitable ;  not,  however,  her  loss  by  running  ashore  in 
some  other  place,  but  some  other  kind  of  loss,  one 
affecting  the  ship  and  all  the  cargo  equally,  e.(/.,  by 
sinking  in  deep  water,  by  burning,  or  capture  by  an 
enemy  or  pirate.  Stranding,  as  has  been  pointed  out,  in 
the  great  majority  of  cases  at  least,  is  an  exposure  of  the 
bottom  of  the  ship,  and  the  cargo  near  the  bottom,  to  a 
risk  of  damage  out  of  all  proportion  to  the  risk  run  by 
the  upper  portion  of  the  cargo ;  it  may  in  these  cases,, 
therefore,  when  the  alternative  is  a  total  loss,  be  properly 
described  as  the  giving  or  sacrificing  of  a  part  for  the 
preservation  of  the  remainder.  Is  it  less  a  sacrifice 
because  if  not  made  the  total  loss  w^as  certain  ?  Here  the 
analogy  of  jettison,  of  cutting  away  a  mast,  and  indeed 


(s)  As  to  the  conclusion  arrived 
at  in  this  paragraph,  see  Carver's 
Carriage  by  Sea,  §§  387,  388.  Mr. 
Carver,  &aid  Mr.  Lowndes,  is  of 
opinion  that  even  in  this,  which  is 
certainly  the  weakest  case,  the  loss 
should  be  treated  as  general  average. 
[But  it  is  not  clear  that  Mr.  Carver 
differs  from  the  view  expressed  in 
the  text,  although  in  the  earlier 
editions  of  his  woi-k  he  criticised  a 
view  which  Mr.  Lowndes  modified  in 
the  last  edition  of  this  work.  Mr. 
Carver's  opinion  is  that  a  loss  by 
voluntary  stranding  is  general  aver- 
age.    He  qualifies  this  opinion,  how- 


ever, by  saying  that  "  it  does  not 
seem  reasonable  to  call  that  volun- 
tai'y  which  merely  anticipates  a  clear 
necessity.  If  the  ship  is  on  the  point 
of  going  on  the  rocks,  the  stranding 
does  not  become  voluntary  because 
the  master  chooses  to  go  stern  on  to 
them  instead  of  broadside,  or  at  one 
spot  rutlier  than  at  anathtr"  See 
Carver,  4th  edit.  §  388.]  Mr.  Mac- 
lachlan,  for  reasons  which,  said  Mr. 
Lowndes,  "are  to  me  simply  un- 
intelligible," thinks  (Arn.  Ins.  (6th 
edit.)  pp.  873-4)  that  damage  by 
voluntary  stranding  should  in  no. 
case  be  treated  as  general  average. 


SECT.  XXXyj.J  VOLUNTAEY  STRANDING.  165 

of  every  other  sacrifice  of  a  part  for  the  whole,  properly 
conies  into  play.  In  none  of  these  cases  are  we  ever 
called  on  even  to  consider  tlie  question  whether  a  loss, 
if  that  particular  sacrifice  had  not  been  made,  was  in- 
evitable. In  all  these  cases  we  act  on  the  principle,  the 
greater  the  danger,  the  greater  the  merit  of  the  sacrifice. 
And  that  this  principle  is  fully  recognized  in  our  courts 
of  law  may  be  seen — to  take  nothing  else — by  reference 
to  the  judgments  of  Bramwell,  L.  J.,  and  Brett,  L.  J., 
in  Shepherd  v.  Kottgen  (t),  where  it  is  said  by  the  former 
that,  to  constitute  wreck,  there  must  be  some  peculiar 
condition  attached  to  the  thing  sacrificed,  owing  to 
which  it  will  be  lost  whether  the  whole  adventure  is 
saved  or  not  (u) ;  and  by  the  latter,  in  all  the  various 
tests  of  wreck,  the  learned  judge  lays  down,  there  is 
contained  a  condition  virtually  the  same  viz.,  that  the 
thing  cut  or  cast  away  must  itself  certainly  be  lost, 
although  the  rest  of  the  adventure  should  be  saved 
without  the  cutting  or  casting  away  (v) ;  both  implying 
that  it  would  be  beside  the  question  to  inquire  as  to  the 
ultimate  fate  of  the  whole  adventure  in  case  the  sacrifice 
were  not  made.  Judged  by  the  tests  here  laid  down 
for  our  guidance,  it  may  confidently  be  asserted  that, 
in  the  case  here  supposed,  the  sacrifice  would  not  be 
excluded  from  general  average  by  our  courts  on  the 
ground  of  its  being  a  case  of  wreck  ;  for,  at  the  time 
when  the  grounding  was  resolved  upon,  no  part  of  the 
ship  or  cargo  had  any  such  "peculiar  condition '*  at- 
tached to  it,  or  was  in  such  a  state  that  it  must  itself 
certainly  be  lost,  although  the  rest  of  the  adventure 
should   be  saved   without  the  grounding.     In  cases   of 


{t)  Shepherd  v.  Kottgen    (1877),    2  {k.)  See  ante,  p.  124, 

•C.  P.  D.  585.  {v)  See  ante,  p.  125. 


166  SACRIFICES  OF  SHIP.  [CHAP.  Ill- 

this  kind,   then,  it   would    seem    that   the    damage   by 
stranding  should  be  treated  as  general  average. 

There  remains  a  third  and  by  no  means  unimport- 
ant class  of  cases,  viz.,  those  in  which  it  is  not  admitted, 
nor  can  be  proved,  that  the  loss  of  the  whole,  if  the  ship 
had  not  been  run  aground,  was  certain  or  inevitable. 
The  case  of  The  Senegal,  above  set  forth  (:?;),  is  a  very 
good  illustration.  Such  cases  are  no  doubt  infrequent : 
perhaps  more  than  ever  so  in  modern  times,  when  ships- 
are  so  costly,  and  so  liable  to  injury  from  taking  the 
ground,  that  the  measure  is  only  resorted  to  in  extreme 
urgency.  But,  in  cases  like  The  Senegal,  the  balance  both 
of  reason  and  authority  is  so  overwhelmingly  in  favour 
of  treating  the  loss  as  general  average,  it  so  nearly  ap- 
proaches a  moral  certainty  that  aAy  court  of  law  would 
so  treat  it,  that,  if  I  were  advising  an  adjuster  how  to  act 
in  such  a  case,  I  should  say  that  he  would  run  a  very 
grave  responsibility  in  treating  it  otherwise. 

Ought,  however,  a  distinction  to  be  made  in  case 
the  ship  is  not  ultimately  saved  ?  In  considering  this 
question,  it  may  be  well  first  to  clear  away  what  may  be 
called  the  unsound  reasons  for  drawing  such  a  distinc- 
tion. Tlie  completion  of  the  voyage  of  the  ship  with 
the  cargo  is  immaterial ;  the  motive  which  constitutes^ 
general  average  being,  not  the  completion  of  the  common 
adventure,  but  the  rescuing  of  the  whole,  or  of  so  much 
as  can  be  rescued,  from  an  imminent  danger,  it  is  enough 
that  the  cargo,  or  a  part  of  it,  has  been  rescued,  and 
brought  for  the  time  into  safety.  Provided  the  act  of 
running  the  ship  ashore  was  judicious — and  unless  it 
were,  there  is  no  general  average  in  any  case — the  loss 
really  caused  by  that  act  is  not  the  less  to  be  replaced 
by  contribution  because  that  loss  is  heavy  than  if  it 

(a;)  Ante,  p.  159. 


SECT.  XXXVI.J  VOLUNTARY  STRANDING.  167 

were  lighter.  As  a  matter  of  principle,  the  only  ques- 
tion to  be  asked,  when  the  stranding  is  followed  by  the 
loss  of  ship,  is,  whether  that  loss  was  really,  in  a  strict 
sense,  caused  by  the  stranding.  Was  that  loss  given, 
or  intended,  or  the  natural  consequence  of  the  strand- 
ing ?  The  answer  to  this  question  may  be  different  in 
different  cases,  so  tliat  it  is  difficult  to  lay  down  one 
general  rule  for  all.  It  is  indeed,  at  present,  difficult  to 
lay  down  a  rule  for  any ;  since  at  present  there  exists 
in  English  law  no  authoritative  answer  to  the  question — 
How  far  are  the  consequences  of  a  sacrifice  to  be  treated 
as  general  average  ?  I  do  not  say  that  there  are  no 
answers,  but  none  that  are  authoritative,  because  none 
which  cannot  be  confronted  by  decisions  opposed  to 
them ;  none,  therefore,  as  to  which  all  our  judges  are 
agreed,  as  will  be  more  clearly  seen  in  the  following 
chapter.  We  may  have,  for  example,  such  a  case  as  the 
following :  A  ship,  pursued  by  an  enemy,  is  compelled 
for  her  safety  to  run  aground,  we  will  say  under  the 
guns  of  a  fort,  where  she  is  safe  from  the  enemy's 
fire.  This  takes  place  during  fine  weather,  and  the  only 
consequences  at  the  time  to  be  anticipated,  and  in  fact 
expected  by  the  master,  were  the  cost  of  unlading  the 
cargo  to  float  her,  and  perhaps  some  slight  damage  to 
the  bottom  of  the  ship.  But  before  the  unlading  of  the 
cargo  can  be  completed,  a  gale  from  seaward  springs  up, 
and  the  ship,  in  her  exposed  position,  is  battered  to 
pieces  on  the  strand.  Is  this  loss  to  be  treated  as  the 
effect  of  the  stranding,  and  therefore  as  general  average, 
or  as  the  effect  of  the  subsequent  gale,  and  therefore  as 
accidental  ?  This  is  an  extreme  case,  but  I  think  it  will 
be  found  that  difficulties  analogous  to  this  constitute  the 
only  real  difficulty  of  dealing  with  cases  of  voluntary 
stranding,  followed  by  a  total  loss  of  the  ship.     I  sup- 


168 


SACRIFICES  OF  SHIP. 


fCHAP.  III. 


pose  the  answer  to  all  of  them  should  be.  an  exposure  to 
extraordinary  risk,  followed  by  actual  loss,  must  be 
treated  as  a  sacrifice  ;  and  wdien  the  master  puts  his  ship 
ashore,  knowing  that  she  must  remain  fast  for  some 
time,  he  must  be  taken  to  have  deliberately  exposed  her 
to  whatever  damage  she  may  suffer  from  the  vicissitudes 
of  the  weather  during  that  time.  Even  in  the  case  put, 
therefore,  I  should  be  inclined  to  treat  the  loss  of  the 
.ship  as  general  average.  But  one  cannot  say,  with 
absolute  confidence,  that  an  English  court  of  law  would 
so  treat  it  (,y). 


{y)  Mr.  Carver  comes  to  virtually 
the  same  conclusions  on  the  law  of 
voluntary  stranding  witb.  those  here 
expressed.  (Carriage  by  Sea,  §§  387, 
388.) 

There  is  a  passage  in  Ser  j  eant  (after- 
wards Mr.    Justice)    Shee's    edition 
of  Abbott,  which  is  exactly  in  accord 
with  the  principle  laid  down  in  the 
text,  but  which  in  the  case  here  sup- 
posed would  evidently  lead  to   the 
opposite    conclusion.      I    quote    the 
whole,  more  particularly  because  of 
the  value  of  the  opening  sentences, 
which  exactly  and  forcibly  lay  down 
what  there  can  be  no  doubt  is  the 
true  principle.  Abbott  himself  merely 
says: — "Supposing  the  cargo  to  be 
saved  and  the  vessel  totally  lost  by 
such    voluntary   stranding,   are   the 
rescued  goods  to  contribute  for  the 
ship  ?    Upon  this  subj  ect  great  diver- 
sity of  opinion  exists  among  foreign 
jurists.     The  question  does  not  ap- 
pear to  have  ever  directly  arisen  in 
our  courts;  and  although  some  Eng- 
lish writers  on  marine  law  have  de- 
termined  it  in  the    negative,    their 
opinion  has  not  obtained  a  general 
or  unqualified   concm-rence."      Ser- 
jeant   Shee,    commenting    on    this, 


says: — "In the  simplest  illustration 
of  the  rule,  the  case  of  jettison,  ain- 
less  the  goods  were  voluntarily  given 
for  the  common  safety,  there  is  no 
contribution.      If     contribution    be 
claimed  for  a  mast  or  a  cable  cut, 
they  must  have  been  (jivoi  for  the 
safety  of  all.    Eepairs  must  fall  upon 
the  owner,  unless  the  damage  was 
submitted  to  and  given  for  the  com- 
mon good,  or  the  cost  of  reparation 
incurred  for  the  sake  of  the  cargo 
alone.     In  the  case  of  a  total  wreck, 
consequent  upon  a  voluntary  strand- 
ing, can  the  ship  be  said  to  have  been 
deliberately  sacrificed  ?    In  the  great 
majority  of  cases,  certainly  not.     A 
vessel  is  not  sacrificed  for  the  pur- 
pose of  destruction ;    that  course  is 
resorted  to  with  the  intention  and  in 
the  hope  of  saving  her  from  immi- 
nent peril.     The  sacrifice  really  in- 
tended to  be  made  is,  in  most  cases, 
the  cost  of  the  damage  which  may  be 
expected  from  the  stranding,  and  the 
expense  of  getting  the  vessel  off ;  the 
total  loss  is  occasioned  by  circum- 
stances which  were  not  foreseen  when 
the   stranding  was  determined   on." 
(Abbott  on  Shipping  (8th  edit.),  p. 
491.) 


SECT.  XXXVI.J  VOLUNTARY  STRANDING. 

Note. 
Older  Anfhnrities  on  Voluntary  Stranding. 

Phillips,  in  a  note  (2  Pliill.  Ins.  p.  85,  u.  (3)),  has  collected  the 
authorities  on  this  subject.  These,  with  the  exceptions  noted,  I 
have  examined  in  the  originals,  with  the  following  results.  The  T)ige!«t. 
reference  to  the  Digest,  1.  3,  has  nothing  Avhatever  to  do  with  the 
matter;  the  Digest  merely  says  that  if  a  mast  or  other  instrumentuni 
navis  is  cut  away  for  the  common  safety,  it  is  general  average. 
The  reference  to  the  Consolato  del  Mare,  so  far  as  I  can  make  out,  Consolato. 
proves  merely  this,  that  in  those  old  times  when  the  merchants 
sailed  in  the  ship,  it  often  happened  that,  before  putting  his  ship 
aground,  the  master  would  consult  with  the  merchants,  and  it  Avas 
often  or  perhaps  commonly  agreed  amongst  them  that,  if  he  did, 
the  damage  done  should  be  shared  by  contribution,  and  the  Consolato 
directs  that  such  agreements  shall  be  strictly  enforced.  The  same 
thing  seems  to  have  been  done  when  cables  were  slipped,  or  other 
sacrifices  made  when  there  was  time  for  such  deliberation.  The 
chapters  referred  to  (192  and  193)  have,  as  numbered  in  Pardessus, 
no  reference  to  our  subject;  but  the  chapters  are  differently  arranged 
in  different  editions,  and  I  can  only  suppose  that  those  referred  to 
by  Phillips  are  the  following: — Chap.  6G  (111),  after  saying  that 
in  case  the  merchants  shall  have  gone  ashore,  as  when  the  ship  is 
lying  off  a  harbour,  a  storm  shall  spring  up,  or  a  cruiser  come  in 
sight,  and  it  shall  become  necessary  for  the  captain  in  the  absence 
of  the  merchants  to  make  some  sacrifice  for  the  common  safety, 
this  is  to  be  treated  as  it  would  have  been  had  the  merchants  been 
present  and  consented,  proceeds  as  follows: — "Much  more,  if  there 
should  happen  the  misfortune  that  the  ship,  by  reason  of  armed 
vessels  or  of  tempest,  were  obliged  to  be  run  ashore,  the  captain 
acting  or  having  acted  in  this  manner  by  the  advice  of  the  above- 
named  [his  officers  and  crew],  and  with  their  knowledge  and  consent, 
every  bargain  or  agreement  that  he  shall  have  made  with  them 
and  in  the  manner  aforesaid  cannot  be  called  in  riuestion  (conteste) 
by  any  merchant,  or  by  anyone  else.'  (2  Pard.  113.)  And,  again 
(Chap.  67  (112)): — "The  merchants  are  bound  to  pay,  by  sou  and 
by  livrc'  (i.e.,  in  proportion  to  values)  "every  expense  which  it 
has  been  agreed  to  make  relatively  to  the  merchandize  except  the 
cost  of  their  loading.  If  then  it  is  necessary  to  lift  the  anchor,  for 
bad  weather  or  other  accident,  that  is  to  say,  to  enter  into  a  port 


169 


170 


SACRIFICES  OF  SHIP. 


[chap.  Ill, 


Guidon. 


VaUn. 


Emerigon. 


or  harbour,  or  into  a  place  in  which  one  may  save  either  the  goods 
or  the  ship,  in  this  case  one  merchandize  should  answer  for  the 
other  by  sou  or  by  Uvre  or  by  hesant.  .  .  .  This  chapter  has  prin- 
cipally for  its  object  to  indemnify  the  ship  for  that  which  one  has 
promised  to  restore  to  it;  for  the  ship  has  this  privilege  that,  if 
the  merchants  promise  to  indemnify  it  in  any  matter,  they  are  bound 
to  keep  this  engagement,  written  or  not,  provided  the  scribe 
(ecrivain)  were  present  and  has  heard  it;  and  the  scribe  is  bound 
to  write  it  as  soon  as  the  ship  has  cable  to  ground,  since  he  was 
in  full  sea  when  the  agreement  was  made."  (2  Pard.  114.)  This 
is  all  I  can  find  in  the  Consolato  bearing  on  the  matter.  The 
Guidon  de  la  Mer,  I  may  observe  in  passing,  and  the  Ordonnance  of 
Louis  XIV.,  sa}'  nothing  whatever  concerning  voluntary  stranding. 
Tit.  7,  Art.  6,  which  is  referred  to  by  Phillips,  throws  light  on 
the  matter  only  by  saying  nothing  about  it.  Valin,  in  his  note  on 
this  article,  supplies  the  omission  by  saying:  "II  jaut  ajouter  que, 
si,  pour  eviter  une  perte  totale,  le  tiaujrage  etant  imminent,  le 
capitaine  prend  le  parti  de  faire  eehouer  le  navire,  le  dommage  que 
le  vaisseau  aura  soufert,  et  cause  par-la,  sera  avarie  grosse  et  com- 
mune." And  for  this  he  cites  Consulat,  Chaps.  192  and  193; 
Eoccus,  pp.  62,  234,  300;  and  Casaregis,  Disc.  45,  No.  60  et  seq. 
(Valin,  edit.  1829,  p.  586.)  Emerigon  is  to  the  same  effect:  "II 
arrive  quelquefois,"  he  says,  "  que,  pour  se  derober  a  Vennemi,  ou 
pour  eviter  un  naufrage  absolu,  on  fait  eehouer  le  navire  dans 
Vendroit  qui  parait  le  moins  dangereux.  Le  dommage  soufjert  a 
ce  sujet  est  avarie  grosse,  parce  qu'il  a  eu  pour  ohjet  le  salut 
cominun.'  And  for  this  he  cites  Valin,  and  the  authorities  cited 
by  him,  and  also  Targa,  cap.  76,  p.  317.  (Emerigon,  Ass.  Chap.  12, 
Sect.  13,  vol.  1,  p.  405,  of  Boulay-Paty's  edit.  1827.)  Eoccus, 
Casaregis,  and  Targa  I  have  not  seen.  "  Stranding  accompanied 
by  bris  (breaking-up),"  continues  Emerigon,  "is  a  species  of 
wreck  (naufrage'y  (same  page).  And  the  force  of  this  is  made 
clearer  in  a  later  section,  where  he  says:  "Damages  occasioned  by 
stranding  are  particular  averages  for  account  of  the  owners.  But 
it  would  be  general  average  if  the  stranding  had  been  voluntarily 
effected  for  the  common  safety,  as  we  have  seen  above  "  [referring 
to  the  passage  above  set  forth],  "provided  always,  that  the  vessel 
has  been  set  afloat  again;  for,  if  the  stranding  has  been  followed  by 
shipwreck,  it  is  sauve  qui  peut."  (Chap.  12,  Sect.  41,  vol.  1,  p.  600.) 
For  this  latter  statement  Emerigon  gives  no  authority,  but  says 
only,  "  See  below,  §  4,  where  I  speak  of  the  case  where  the  jettison 


SECT.  XXXVI.]  VOLUNTARY  STRANDING.  171 

does  not  save  the  ship."  Turning-  to  this  section,  we  find  it  laid  down, 
on  the  authority  of  a  passage  in  the  Digest,  that  if  cargo  be  thrown 
overboard,  or  a  mast  be  cut  away,  there  shall  be  no  contribution 
iinless  the  ship  be  saved.  (Emer.  vol.  1,  p.  601.)  We  seem  here 
to  have  got  to  the  original  source  of  this  distinction  made,  in  cases 
of  voluntary  stranding,  between  the  cases  in  which  the  ship  is  got 
off  and  that  in  which  she  becomes  a  wreck.  It  is  to  be  found  nowhere 
earlier  than  in  Emerigon,  and  by  him  is  almost  expressly  traced  to 
the  more  general  principle  (now  much  modified)  that  there  shall  be 
no  contribution  unless  the  ship  be  saved.  There  is  no  use  in  fol- 
lowing the  stream  of  precedent,  in  which  one  author  servilely  copies 
his  predecessor,  now  that  we  have  got  to  the  fountain-head. 


172 


CHAPTER  IV. 


EXTRAORDINARY  EXPENDITURE. PART  I. 


SECT.  PAGE 

37.  Division  between  sacrifice  and  expenditure 172 

38.  Salvage  in  general 1  '^ 

39.  Salvage  of  life     182 

40.  Complex  salvage  operations  :  classification 183 

41.  Cases  bearing  on  the  question,  what  is  an  entire  salvage  opera- 

tion, viz.  : — 

Kemp  V.  Halliday     187 

Job  V.  Langton •  •  •  188 

Jloran  v.  Jo7ies     190 

Walthew  \.  Mavrojani     194 

Royal  Mail  Co.  v.  English  Bank  of  Rio    198 

42.  Application  of  these  decisions  in  practice — 

1.  Whether  all  must  be  specific,  or  all  general  average.  .  .  .  200 

2.  Salvage  operations  under  modern  conditions 205 

3.  Expenses  of  removing  to  a  market  or  port  of  shipment .  .  209 

4.  Cost  of  reloading 211 

43.  Treatment  when  ship  derelict    213 


Division 

between 
sacrifice  and 
expenditure. 


§  37.  It  has  been  pointed  out  (§  2)  that  the  so-called 
definition  of  general  average  laid  down  by  Mr.  Justice 
Lawrence,  which  divides  it  under  the  heads  of  sacrifice 
and  extraordinary  expenditure,  is  virtually  borrowed 
from  the  Ordonnance  of  Louis  XIV.,  and  is  no  more 
than  an  expansion  of  the  quod  pro  omnibus  datum  est  of 
the  Ehodian  law.  Before  an  expenditure  can  be  properly 
given  for  all,  it  must  be  in  some  sense  extraordinary; 
since  every  expense  incident  to  the  ordinary  prosecution 


SECT.  XXXVII.]  INTEODUCTION.  173 

of  the  voyage  has  been  already  purchased,  being  included 
in  the  stipulated  freight,  and  therefore  may  be  paid  but 
cannot  be  said  to  be  given.  The  shipowner,  having  un- 
dertaken to  carry  the  cargo  to  its  destination,  would  be 
liable  to  bear  the  whole  expense  of  doing  so,  were  it  not 
for  the  reservation  he  has  made,  "  the  accidents  of  navi- 
gation excepted ;  "  so  that  he  can  only  demand  contribu- 
tion for  such  expenses  as  are  incurred,  for  the  benefit  of 
the  cargo  together  with  the  ship,  in  respect  of  this 
reserved  portion  of  the  contract. 

Except  as  thus  understood,  the  sub-division  of 
general  average  losses  into  sacrifices  and  extraordinary 
expenditure  cannot  be  considered  a  very  happy  one(«). 
Some  sacrifices,  as  for  example,  most  damage  done  to  a 
ship,  must  be  reduced  into  the  form  of  expenditure 
before  it  can  be  replaced  by  contribution.  On  the  other 
hand,  expenditure  as  such  can  never  save  a  ship :  that 
which  saves  her  is  the  adoption  of  some  extraordinary 
measure,  or  some  measure  taken  under  extraordinary 
circumstances,  which  involves  or  leads  to  expenditure, 
out  of  the  common  course,  because  the  measure  itself  is 
out  of  the  common  course.  It  would  seem  a  more  accu- 
rate classification  to  say  that  a  general  average  must  be 
the  result  of  a  sacrifice,  which  may  be  either  of  the  cargo 
or  of  the  ship,  or  may  consist  in  the  adoption  of  some 
course  of  action,  out  of  the  common  course,  and  which 
the  captain  was  therefore  not  bound  to  adopt,  but  the 
adoption  of  which  must  lead  to  an  increased  expense. 

(«)  The  Germans,  iu  tlio  confer-  average  expenditure  was  adequately 
ences  which  preceded  the  construe-  described  without  it,  in  saying  that 
tion  of  their  code  for  the  empiio,  it  must  be  "  an  expenditure  incurred 
resolved  to  omit  the  word  "  extra-  for  the  purpose  of  rescuing  the  ship 
ordinary"  from  their  definition  for  and  cargo  from  an  iniminent  dan- 
two  reasons;  first,  because  it  might  ger."  (Ulrich,  Grosse  Haverei, 
occasionally  mislead,  and  secondly,  p.  4.) 
because  the  true  character  of  a  general 


174  EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV. 

This  is  only  here  set  down,  because  practical  conse- 
quences, as  we  shall  see  in  the  following  chapter,  have 
probably  resulted  from  the  inaccuracy  here  pointed  out 
in  our  definition. 

The  subject  of  extraordinary  expenditure,  treated 
in  detail,  may  for  convenience  be  divided  under  the 
following  principal  heads.  First,  expenses  occasioned 
by  measures  taken  to  rescue  a  ship  which  has  met  with 
some  serious  disaster,  such  as  being  sunk,  stranded,  on 
fire,  or  in  collision,  and  is  rescued  from  the  imminent 
danger  of  total  loss  by  salvage  services,  or  services 
analogous  to  salvage.  Secondly,  expenses  incurred  by 
bearing  up  for  a  port  of  refuge,  in  order  to  repair  a  ship 
or  otherwise  to  avert  a  danger  threatening  ship  and 
cargo  if  she  were  to  remain  at  sea.  Thirdly,  expense, 
or  loss  substituted  for  expense,  incurred  in  order  to 
raise  funds  for  defraying  expense  necessary  for  either  of 
the  two  preceding  heads.  These  heads,  though  pro- 
perly belonging  to  the  same  main  division  of  our  sub- 
ject, are  for  convenience,  on  account  of  their  length, 
divided  under  two  chapters. 


PART  I. 

SALVAGE  CHARGES. 

I.    Of  salvage  in  general. 

§  38.  As  jettison  is  regarded  as  the  type  or  simplest 
form  of  a  general  average  sacrifice,  so  salvage,  it  has 
been  said,  may  be  regarded  as  the  type  of  a  general 
average  expenditure.  This,  however,  is  only  from  one 
point  of  view.  Salvage  is  always  an  extraordinary  ex- 
pense, and  is  always  incurred  in  order  to  rescue  the 
thing  salved  from  danger  :  in  these  respects  it  is  a  per- 


SECT.  XXXVIII.]  SALVAGE  CHARGES. 


175 


feet  form  of  general  average  expenditure  ;  but  it  is  not 
always  incurred  for  the  common  safety  of  ship  and 
cargo.     Whenever  it  is  so,  it  is  general  average  (b). 

The  law  of  salvage  has  been  considerably  developed  Admiralty 

./I  decisions. 

in  the  Admiralty  Court.  One  or  two  of  its  incidents 
throw  some  light  on  the  subject  of  general  average  ;  and 
these  may  be  briefly  noted  here. 

The  master  of  a  ship  has  authority,  in  case  of  need,  Master's 

authority  as 

to  engage  the  assistance  of  salvors  (c),  and  to  bind  both  to  salvage 

contracts. 


(b)  The  editors  point  out  that, 
strictly  speaking,  salvage  in  the 
proper  sense  of  the  word,  i.e.,  the 
reward  recoverable  by  salvors  under 
maritime  law,  independently  of  con- 
tract, is  not  general  average.  The 
salvors  have  a  lien  for  their  salvage 
upon  the  ship,  cargo  and  freight, 
but  upon  each  of  the  interests  for  its 
proportionate  amount  only ;  and  the 
shipowner  is  not  liable,  merely  be- 
cause the  master  has  accepted  the 
services  of  the  salvors,  to  j^ay  the 
cargo's  proportion  of  the  salvage. 
(See  The  Raishy  (1885),  10  P.  D. 
114.)  So  far,  therefore,  the  ship- 
owner has  not  incurred  any  expen- 
diture for  the  common  benefit.  If, 
however,  in  order  to  obtain  posses- 
sion of  the  cargo,  he  pays,  or  renders 
himself  liable  to  pay,  the  cargo's 
proportion  of  the  salvage,  he  can 
recover  it  from  the  cargo- owner,  and 
enforce  this  right  by  exercising  a 
lien  on  the  cargo.  {Brigys  v.  Mer- 
chcmt  Traders'  Association  (1849), 
13  Q.  B.  167.)  The  question  is  dis 
cussed  in  Carver,  §§  394,  395 ;  see 
also  Arnould,  §  964;  and  cf.  The 
Jason  (1908),  162  Fed.  E.  56,  62, 
where  Hough,  D.  J.,  dissents  from 
the  view  that  there  is  a  distinction 
between  general  average  and  salvage 
proper. 

In  practice  salvage  is  treated   as 


general  average,  though  it  cannot 
always  be  adjusted  on  the  same  basis. 
For  the  rule  of  the  Court  of  Admi- 
ralty is  that  each  part  of  the  property 
saved  contributes  to  the  award 
according  to  its  value  at  the  time 
when  the  salvors  completed  their 
woi'k,  and  values  adopted  by  the 
court  are  accepted  by  adjusters  for 
the  division  of  the  salvage ;  whereas 
in  general  average,  contribution  is 
usually  assessed  on  the  value  at  des- 
tination, or  possibly  in  the  event  of 
the  voyage  being  broken  up  on  the 
value  at  the  place  where  the  voyage 
is  abandoned.  This  value  is  not 
necessarily  the  same  as  the  value  at 
the  place  where  the  salvage  services 
terminated.  A  further  difference  in 
the  basis  of  the  apportionment  arises 
from  the  fact  that  in  the  division  of 
salvage  the  actual  value  of  the  thing 
salved  is  adopted,  without  taking 
into  consideration  the  value  of  any 
portion  sacrificed  and  allowable  as 
general  average,  whereas  for  the 
purposes  of  general  average  the 
amount  made  good  for  the  sacrifice 
is  added  to  the  delivered  value  to 
arrive  at  the  contributory  value. 
(See  infra,  p.  336.)  In  the  same 
adjustment  it  may  therefore  be  neces- 
sary to  apportion  salvage  and  general 
average  separately. 

(c)  How  far  the  owner  of  the  ship. 


176 


EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV. 


ship  and  cargo  to  the  fulfilment  of  any  reasonable  con- 
tracts he  may  make  for  their  remuneration  ((/).  He  has, 
however,  no  authority  to  bind  his  principals  to  anything 
distinctly  not  reasonable  (e).  Nor  has  he  authority  to 
make  contracts  for  salvage  which  are  one-sided,  as  giving 
the  ship  an  undue  advantage  over  the  cargo  ;  such,  for 
example,  as  a  contract  for  rescuing  a  ship  and  cargo  from 
a  common  danger,  on  the  terms  that  a  fixed  sum  shall  be 
payable  in  respect  of  the  ship,  leaving  the  salvor  to 
obtain  as  much  as  he  can  from  the  cargo.  "  That,"  said 
Dr.  Lushington,  "  would  open  a  door  to  every  descrip- 
tion of  fraud.  ...  Of  course,  salvors  would  make  a 
bargain  with  the  master  much  more  advantageous  to  the 
owners  of  the  ship,  when  they  are  sure  of  obtaining  the 
master's  assistance  to  get  a  larger  salvage  from  the 
owners  of  the  cargo  "  (/). 


supposing  he  is  at  hand  and  in  a 
position  to  give  orders,  has  a  similar 
power  to  that  which  is  undoubtedly 
invested  in  the  captain  when  at  sea 
or  in  a  distant  port— to  what  extent 
the  owner. can  bind  the  representa- 
tives of  the  cargo  by  salvage  con- 
tracts—is a  point   as   to   which   the 
law  does  not  seem  to  be  very  clear. 
"The  shipowner,"  says  Blackburn,  J., 
in  Kemp  v.  HaUiday,  "  is  the  autho- 
rized agent   of    the   owners  of    the 
cargo,  having  the  custody  of  it,  and 
bound  to  save  it  if  he  can."    ( (1861), 
34  L.  J.   Q.  B.  p.   '^46.)     It  would 
perhaps    be  carrying   the   authority 
of  this  dictum  too  far  were   we   to 
infer  from  it  that  contracts  for  sal- 
vage entered  into  on  shore  by  the 
shipowner,  without  the  express  con- 
currence of  the  owners  of  the  cargo, 
would  be  binding  on  the  latter.    The 
representatives  of  the  cargo  should, 
at  any  rate,  be  consulted  when  prac- 
ticable. 


{(l)  I.e.,  if  the  salvage  agreement 
be  an  equitable  one,  a  Court  of  Ad- 
miralty will  enforce  it  in  an  action 
of  salvage  against  the  ship,  cargo 
and  freight;  and  if  the  shipowner 
has  paid  the  agreed  remuneratic'n,^ 
he  can  recover  the  cargo's  contribu- 
tion by  action  against  the  cargo- 
owner,  or  by  exercising  his  lien. 
{^Anderson  v.  Ocean  S.S.  Co.  (1884), 
10  App.  Cas.  107.)  The  fact  that  the 
shipowner  has  paid,  or  is  liable  to 
pay,  the  agreed  amount  is  not,  how- 
ever, conclusive  against  the  cargo- 
owner,     (lb. ) 

(e)  The  True  Blue  (1843),  2  W. 
Eob.  179;  Ocean  S.S.  Co.  y.  Ander- 
son (1883),  13  Q.  B.  D.  at  p.  662. 
See  The  Medina  (1887),  2  P.  D.  o 
(C.  A.);  The  Silesia  {mil),  5  P.  D. 
177  ;  The  Mark  Lane  (1890),  15  P.  D. 
135;  The  Crusader,  [1907]  P.  22, 
19d  (C.  A.). 

(/)  The  Westminster  {mA\),  1  W. 
Eob.  229,  235. 


SECT.  XXXVIII.]  SALVAGE  CHARGES.  ^^^ 

Altliough,  in  general,  salvors  derive  their  title  to  ^|.\\^jj''''*^g 
remuneration  from  their  being  expressly  engaged  by  the  ^uiinteers. 
master  to  assist,  or  from  an  invitation  on  his  part,  such 
as  the  hoisting  of  a  signal  of  distress,  yet  such  express 
hiring  is  not  always  requisite.  There  may  be  cases  of 
emergency  in  v^'hich  the  rendering  of  unasked  assist- 
ance will  give  a  title  to  reward.  "  It  would  be  danger- 
ous," said  Lord  Kingsdown,  "  to  hold  that,  if  salvage 
service  be  actually  rendered  to  a  ship,  she  cannot  be 
called  upon  to  pay  anything  unless  it  can  be  shown  that 
she  either  requested  or  expressly  accepted  assistance. 
The  urgency  of  the  case  may  be  too  great  to  admit  of 
previous  discussion,  and  if  a  salvor  were  required  to 
prove  such  agreement  before  he  could  recover,  it  is  to 
be  feared  that  there  would  be  much  slackness  in  cases 
which  most  require  energy  and  activity  "  (ff). 

Salvag-e  services  may  be  of  many  kinds,  there  beinsr  Requisites  of 

"  ^    _   "^  "^  _  ^   salvage 

but  one  absolute  requisite,  namely,  that  the  ship  should  service. 
be,  actually  or  prospectively,  in  danger.  It  is  not  neces- 
sary that  the  danger  should  have  resulted  from  the  perils 
of  the  seas.  Thus,  if  a  ship  be  in  danger  from  being 
short-handed,  owing  to  deaths  or  sickness  of  the  crew, 
this  may  suffice  to  give  a  claim  for  salvage  (h).  Nor  is  it 
necessary  that  the  danger  should  be  imminent.  Salvage 
has  frequently  been  allowed  for  assistance  rendered  to  a 
steamer  which  had  lost  her  propeller,  though  the  weather 
was  fair  at  the  time,  simply  on  the  ground  that  she  might 
be  unmanageable  in  the  event  of  a  storm  coming  on(z), 

{g)  The  H.  M.  Hayes  {l8{M),Jjush.  &   E.    58,    Dr.  Lushington   said  (at 

375.     See  also  The   Vundyck  (1SS2),  p.  60): — "It  is  not  necessary  that 

5  Asp.  M.  L.  C.  17  (C.  A.),  and  cf.  there  should  be  absolute  dai;ger  in 

Tlte  Emilie  Gal/me,  [1903]  P.  106.  order  to  constitute  a  salvage  service; 

(/i)  The   Charlotte   Wylie  (1846),  2  it  is  sufficient  if  there  is  a  state  of 

W.  Eob.  495.  difficulty  and  reasonable  apprehen- 

(0  The  Ellora  (1862),  Lush.   550.  sion." 
In  The  Phantom  (1866),  L.  E.  1  A. 

L.  N 


178 


EXTRAORDINARY  EXPENDITURE. PT.  I.   fCHAP.  IV. 


''  It  will  be  sufficient,"  said  Dr.  Lushington  in  another 
case,  "  if,  at  the  time  the  assistance  is  rendered,  the  ship 
has  encountered  any  damage  or  misfortune  which  might 
possibly  expose  her  to  destruction  if  the  services  were 
not  rendered  "  {k).  The  mere  transhipment  of  a  cargo 
from  a  stranded  ship  may  be  treated  as  a  salvage  service, 
if  the  cargo  were  in  actual  danger  at  the  time.  "  The 
degree  of  danger,"  said  Dr.  Lushington,  in  a  case  of  this 
kind,  "  is  immaterial  in  considering  the  nature  of  the 
service;  for  if  the  cargo  at  all  required  assistance  to 
remove  it  into  a  place  of  safety,  the  service  then  as- 
sumes the  character  of  a  salvage  service "  {I).  A  ship 
which  is  aground  from  accident  is  always  considered  to 
be  in  a  state  of  danger,  so  that  the  getting  her  afloat  is 
a  salvage  service ;  for  the  obvious  reason  that,  though 
perhaps  safe  enough  at  the  time,  danger  must  be  appre- 
hended should  bad  weather  come  on  (m). 
When  towage  Ordinary  towage,  in  entering  or  leaving  a  port,  in 

becomes  a  •  n      i  • 

salvage  tlio  courso  of  a  voyago,  if  the  tug  is  engaged  merely 

to  save  time,  or  in  accordance  with  the  custom  of  the 
port,  is  of  course  not  a  salvage  service ;  but  it  may  be 
converted  into  salvage  by  causes  which  introduce  the 
element  of  danger.  If,  for  example,  a  ship  has  been 
disabled  by  stress  of  weather,  so  that,  either  for  want 
of  n>asts  or  sails,  or  from  damage  to  her  rudder,  or 
because  she  is  leaky,  it  is  dangerous  for  her  to  keep  the 


service. 


(/c)  The  Charlotte  (1848),  3  W. 
Eob.  68,  71. 

(/)  The  Westminster  (1841),  1  W. 
Eob.  229,  231. 

(m)  The  Shannon  (1847),  11  Jur. 
p.  1045.  Cf.  Trafalgar  S.S.  Co.  v. 
British  &  Foreign  Mar.  Ins.  Co.  (1904), 
Shipping  Gazette,  18tli  Nov.  1904. 
lu  this  case,  Chanuell,  J.,  held,  where 
a  ship  had  grounded  on  soft  mud  in 


the  Eiver  Plate,  that  the  damage 
done  to  her  engines  in  getting  her 
afloat  was  not  general  average,  be- 
cause the  ship  and  cargo  were  in  no 
danger,  as  any  wind  which  might 
cause  damage  would  previously  have 
raised  the  water  sufficiently  to  get 
her  off .  See  No.  15  of  the  Eules  of 
Practice  of  the  Association  of  Average 
Adjusters. 


SECT.   XXXVIII.]  SALVAGE  CHARGES.  179 

seas,  and  if  for  that  reason  a  steamer  is  engaged  to 
assist,  such  service,  being  extraordinary,  is  treated  as 
salvage,  and  is  paid  for  at  a  higher  rate  than  mere 
towage  (w).  Again,  the  coming  on  of  unexpected  danger 
during  tlie  performance  of  a  contract  for  towage  may, 
by  rendering  the  service  dangerous  to  a  lug,  or  by 
changing  its  character,  give  a  right  to  salvage. 

Although  a  tug  under  contract  to  tow  a  ship  from 
one  point  to  anotlier  is  supposed  to  take  the  cliance  of 
ordinary  changes  in  the  weather  which  may  render  the 
service  somewhat  longer  and  more  troublesome  tlian 
usual  (o)  ;  and  although  she  is  bound,  in  case  of  acci- 
dent, to  render  witliout  additional  charge  such  assistance 
as,  while  rescuing  tlie  ship  from  danger,  involves  no 
additional  risk  nor  material  loss  of  time  to  the  tug,  such 
as  backing  tlie  ship  off  a  shoal  (;?),  or  pulling  her  clear 
after  a  collision  {q)  ;  and  although,  again,  the  contract  to 
tow  is  never  actually  dissolved,  so  as  to  justify  the  tug 
in  standing  aloof  and  making  a  fresh  bargain,  so  long  as 
there  remains  a  possibility  to  perform  it  (r) ;  yet  the 
existence  of  a  contract  to  tow  does  not  debar  the  tui? 
from  recovering  an  additional  payment  in  the  nature  of 
salvage,  whenever,  in  the  course  of  her  towing,  unfore- 
seen accidents  have  thrown  upon  the  tug  a  service,  not 
within  the  express  scope  of  her  contract,  and  having  the 
effect,  on  the  one  hand,  of  rescuing  from  danger  the 
vessel  in  tow,  and  on  the  other  of  either  exj^osing  the  tug 


(n)   The  TsalelJa   (1S38),    3   Hagg.  [q)   The    Annapolis   (1861),    Lush. 

427;   The  Reward  {1^4:1),  1  W.  Eob.  355. 

1 '4,  177.  (r)  The  Pi-rides  (1S63),  Br.  &  Lush. 

(o)   Tlie    Galatea    (1858),    Swabey,  80;    The  Albion  (1861),  Lush.  282 ; 

3-19.  The   Betsey  (1843),  2  W.  Eob.    167, 

(/')   The  Lady  E(jidia{im2), 'Lush..  172;     Thi-   Princ  ss    Alice    (1849),    3 

513.  W.  Rob.  138 ;  The  Minnehaha  (18G1), 

Lush.  335. 

n2 


180  EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV. 

to  hazard,  or  causing  appreciable  loss  of  time  or  additional 
labour  (s). 
Basis  of  Salvage  service  of  the  kind  we  are  here  dealing 

payment  for  p  •  i  T_  • 

salvage.  with,  namelv,  such  as  has  the  effect  of  saving  the  ship 

and  cargo  conjointly  from  a  common  peril,  is  rewarded 
by  a  payment,  varying  according  to  merit ;  that  is  to 
say,  not  by  a  fixed  proportion  on  the  value  of  the  pro- 
perty saved,  but  by  a  rate  graduated  according  to  the 
danger,  trouble,  skill,  and  loss  of  time  of  the  salvor, 
taken  conjointly  with  the  danger  from  which  the  pro- 
perty is  rescued,  and  its  value.  This  last,  indeed,  may 
be  said  to  be  a  secondary  consideration  :  it  only  comes 
into  the  account,  theoretically  at  least,  as  enabling  the 
court  to  give  with  a  more  liberal  hand  when  there  is  a 
large  fund  to  drawfrom(^).  But,  whether  the  amount 
be  large  or  small,  it  is  always  treated  as  falling  rateably 
upon  the  ship,  the  freight,  and  the  cargo,  in  proportion 
to  their  respective  values.  The  salvors  have  a  right  of 
lien  upon  all  the  property  saved,  on  the  cargo  equally 
with  the  ship.  The  court  will  discourage,  as  has  been 
seen,  all  bargains  which  have  a  tendency  to  disturb  the 
equal  incidence  of  this  burden.  If,  as  sometimes  hap- 
pens, the  court  is  required  to  determine  the  amount  of 
salvage  failing  on  some  portion  only  of  the  property 
saved — the  remainder  having  been  arranged  by  a  bar- 
gain out  of  court — the  method  always  adopted  for  this 
purpose  is,  first  to  fix  what  is  a  proper  remuneration  for 
the  whole  service,  and  then  to  arrive  at  the  proportion 
applicable  to  the  defendants  by  a  ratio  depending  on  the 
values  (ii).    Thus,  the  Court  of  Admiralty,  in  this  matter, 

(s)  The   Gahdea   (1858),    Swabey,  GalUne,  [1903]  P.  106. 

349.    See  also  The  Minnehaha,  supra,  {t)  The  Buikes  (1824),  1  Hagg.  246; 

^here  the  principle  as  stated  in  the  The  Syrian{lS6()),  14L.  T.(N.S.)8«^3. 

text  is  clearly  laid  down  ;   The  Emilie  («)  The  im ma  (1844),  2  W.  Eob. 


SECT.  XXXVIII.J  SALVAGE  CHARGES.  ^^^ 

uniformly  recognizes  and  acts  upon  the  principle  of 
general  average. 

The  values  taken  bv  the  Court  of  Admiralty  for  this  Coutdbutiu- 

"  _  .  values. 

purpose,  it  may  here  be  mentioned,  are  the  values  exist- 
ing at  the  time  when  the  salvors  have  completed  their 
work,  and  are  prepared  to  give  up  their  lien  on  the  pro- 
perty to  the  owners  (x). 

Does  the  mere  attempt  to  salve,  when  not  carried  ^^tem '"tT^"^ 
to  a  successful  termination,  give  a  title  to  salvage  ?  This  ^«  «'^^^^- 
depends,  it  seems,  on  whether  the  salvors  are  self-invited 
volunteers,  or  have  been  engaged  by  the  master.  In  the 
former  case,  they  go  at  their  ov/n  risk,  and  if  they  leave 
their  work  imperfect,  so  that  no  real  service  to  the  pro- 
perty results  from  it,  they  can  claim  no  reward  in  case 
the  property  be  saved  by  others  (y).  In  no  case,  appa- 
rently, unless  expressly  so  stipulated,  can  salvage  be  due 
if  there  is  nothing  saved.  But  "  if  men  are  engaged  by 
a  ship  in  distress,  whether  generally  or  particularly,  they 
are  to  be  paid  according  to  their  efforts  made,  even 
though  the  labour  and  service  may  not  prove  beneficial 
to  the  vessel.  The  engagement  to  render  assistance  to 
a,  vessel  in  distress,  and  the  performance  of  that  engage- 
ment so  far  as  necessary,  or  so  far  as  possible,  establish 
a  title  to  salvage  reward  "  (z).  Accordingly,  where  the 
master  of  a  ship  which  had  lost  her  anchors  in  a  gale  off 
the  Foreland  had  engaged  a  steamer  to  fetch  an  anchor 
and  cable  from  shore,  and  the  steamer  had  gone  to  Rams- 
gate  for  the  purpose,  and  there  hired  a  lugger  to  bring 
them  out,  it  was  decided  that  the  steamer  was  entitled 

■315,  319 ;   The  Vesta  (1828),  2  Hagg.  contributes   to   the   eventual  safety, 

189,  193.  they   are    to   be   paid  for  it.     {The 

(x)  See  ante,  p.  175,  note  {b).  Samuel  {1851),  15  Jur.  407;   The  Jong 

{y)  The  India  (1842),    1  W.  Eob.  Bastiann  (1804),  5  C.  Eob.  322.) 

406,  408.     If,  however,  their  work,  {z)  Per  Dr.  Lushington,  The  Un- 

though  incomplete,   is    useful,    and  daunted  (1860),  Lush.  90. 


182 


Services 

ejusdcm 
generit. 


EXTRAORDINARY  EXPENDITURE. — PT.  I.   [CHAP.  IV. 

to  salvage  for  so  doing,  notwithstanding  that,  during  her 
absence,  the  crew  of  the  ship  had  got  ready  her  spare 
anchor,  and  when  the  steamer  returned,  the  gale  having 
abated,  they  did  not  require  the  chain  brought  from 
Ramsgate,  and  refused  to  take  it  (a). 

Services  which,  thougli  not  strictly  salvage,  are  of  a 
like  nature  to  it,  as  being  extraordinary  in  kind,  and  ren- 
dered for  the  rescuing  of  a  ship  and  cargo  conjointly 
from  a  common  j^eril,  are,  like  salvage  itself,  to  be  paid 
for  by  a  general  contribution ;  such,  for  example,  as  the 
labour  of  boatmen  or  others  hired  by  the  day  or  tide  to 
carry  out  anchors  or  otherwise  assist  at  the  floating  of  a 
stranded  ship  with  her  cargo  on  board  (h).  [Their  re- 
muneration is,  however,  not  salvage,  but  a  general 
average  expenditure  in  the  strict  sense  of  the  term.] 


Is  rewarded 
by  Act  of 
Parliament. 


II.   Of  life  salvage. 

§  39.  There  is  one  kind  of  salvage  which  is  treated 
like  general  average,  though  not  for  the  conmion  safety ; 
and  that  is  salvage  of  life.  Formerly,  no  reward  in  the 
nature  of  salvage  was  legally  due  to  those  who  saved  life 
only,  without  also  saving  property ;  althougli,  when  both 
were  saved  by  the  same  salvors,  a  higher  reward  was 
always  given  on  account  of  the  saving  of  life,  and  the 
whole  of  this  auguiented  sum,  being  nominally  for  saving 
the  property,  was  paid  by  ship  and  cargo  rateably.  Thus 
indirectly,  or  rather  in  a  disguised  manner,  the  salvage  of 
life  was  always  really  treated  as  general  average.  Now, 
by  the  Merchant  Shipping  Act,  1894  (57  &  58  Vict. 
c.  60),  s.  544:,  re-enacting  the  provisions  of  the  Merchant 
Shipping  Acts,  1854  and  1862,  anyone  who  has  rendered 


(a)  The  Undaunted  {1860),  Lush.  90. 
{b)  Or  pilots,  in  some  cases.   {Aker- 


blom  V.  Price  (1881),  7  Q.  B.  D.  129 
(C.  A.).) 


1  A'\ 
SECT.  XXXIX.]       COMPLEX  SALVAGE  OPERATIONS. 

assistance  wholly  or  in  part  in  British  waters  (c),  in 
savings  life  from  any  British  or  foreign  vessel,  or  else- 
where in  saving  life  from  a  British  vessel  (f/),  is  entitled 
to  a  reasonable  amount  of  salvage,  whether  he  has  also 
saved  property  or  not  (e).  This  salvage  is  constituted  a 
charge  upon  the  cargo  saved,  as  well  as  on  the  ship(/) ; 
and  the  owners  of  cargo  saved  otherwise  than  by  the 
life  salvors  are  liable  to  contribute  thereto  ( r/).  This 
is,  therefore,  a  species  of  salvage,  created  by  Act  of 
Parliament.  The  owner  of  the  cargo  is  liable  for  his 
share,  and  the  salvor's  claim  on  the  cargo  is  protected 
by  a  maritime  lien  :  the  expense,  therefore,  is  in  fact  an 
expense  incurred  in  order  to  obtain  possession  of  the 
property  (h). 

III.    Complex  salvage  operations. 

§  40.  We  are  in  the  next  place  to  consider,  more 
precisely,  in  what  cases  salvage  services,  or  services  of  a 
like  nature,  are  to  be  treated  as  general  average. 

The    operations  by  which    a    ship    and   cargo    are  classification. 
rescued  from  a  situation  of  peril   may  be  divided  into 
three  classes:  First,  those  which  throughout  deal  with  the 
property  as  a  whole,  and,  in  saving  any  part,  save  all  at 

(c)  See  The  Facific,  [1898]  P.  170,  This  provision  has  been   applied  to 

and  cf.  Jorrjeiiseii,  v.  Neptune  Steam  Prussian  vessels. 

FishiMj  Co.  (1902),  39  Sc.  L.  E.  765.  [e)  The  Fusilier  (1865),  Er.  &  L. 

id)  By  sect.  545,  if  the  government  341. 

of  a  foreign  country  is  willing  that  (/)  See     sects.     552,     553.      The 

salvage  shall  be  awarded  by  British  salvage  is  borne  by  the  ship,  freight 

courts  for  saving  life  from  ships  of  and  cargo,  in  the  usual  proportions, 

that  country  outside  of  the  jurisdic-  See    The   Fusilier  (1865),  Br.   &  L. 

tion,    the    provisions     of     the     Act  341,  347. 

relating  to  life  salvage  may  by  Order  {(])  The  Fusilier,  supra. 

in  Council  be  made  to  applj'  as  if  the  (//)  See    also,   to  the   like    effect, 

services  were  rendei'cd  in  saving  life  (■ar(jo  ex  Schiller  (lHlG—1),  1  P.  D. 

from   ships   within  the  jurisdiction.  470;  2  P.  D.  145  (C.  A);   Carfjc  ex 

Sarpedon  (1877),  3  P.  D.  28. 


184 


EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV. 


once ;  as,  for  example,  wlien  a  steamer  tows  a  loaded 
ship  off  a  sandbank.  Secondly,  those  which  consist  in 
tlie  rescuing  of  portions  of  the  property,  disconnectedly, 
and  so  that  the  saving  of  one  ])ortion  has  no  refer- 
ence to,  and  does  not  assist  in,  the  saving  of  another 
portion  ;  such  as  the  recovery  of  goods  or  ship's  materials 
strewn  along  a  beach,  or  floating  about  at  sea,  after  the 
ship  has  broken  up.  Thirdly,  those  which  have  for  their 
object  the  saving  of  the  whole  proj^erty,  or  so  much  of  it 
as  can  be  saved,  not  all  at  once,  but  by  a  series  of  dis- 
tinct operations,  each  of  which  has  or  may  have  the 
twofold  effect  of  immediately  rescuing  from  danger  one 
portion  of  the  property,  and  of  facilitating  the  eventual 
recovery  of  the  remainder;  as  when,  a  ship  being  ashore, 
and  her  floating  uncertain,  some  of  the  cargo  is  first 
taken  out,  and  it  then  becomes  possible  to  tow  her  off 
by  a  steamer  when  she  has  been  lightened.  These  last 
may  be  called  complex  salvag-e  operations. 

Tliere  is  no  difficulty  about  the  first  or  second  class 

of   expenditures.     The  first   always,  the  second  never, 

form   the  subject  of  general  average.     The  third  kind 

require  a  somewhat  fuller  examination. 

Distinctiou  What  WO  havo  first  to  consider  in  each  of  tliese  cases 

entire  opera-    is,  wliethcr  the  j^articular  case  before  us  for  adjustment  is 

tion  and  i  i  i  •  • 

several.  morc  properly  to   be  treated  as  one  entire  operation,  or 

as  a  series  of  partially  distinct  operations,  Avhich,  though 
conjointly  tending  to  one  common  purpose,  yet  likewise 
have  each  a  distinct  purpose  of  its  own,  and  a  purpose 
which  for  one  reason  or  another  deserves  or  may  deserve 
more  attention  than  that  purpose  which  is  common  to 
them  all.  Each  of  these  cases,  it  may  be  said,  is  one  in 
which  there  are  two  distinct  stages,  each  involving  an 
extraordinary  expenditure.  The  whole  ship  and  cargo 
being  in  a  position  of  more  or  less  danger,  we  begin  by 


SECT.  XL.]  COMPLEX  SALVAGE  OPERATIONS.  1^5 

placing  a  portion — generally,  from  the  necessity  of  tlie 
case,  a  j^ortion  of  the  cargo — into  a  position  of  absolute 
safety,  as  by  landing  it,  in  doing  which  we,  at  the  same 
time,  improve  the  condition  of  the  ship  and  remaining 
goods,  not  so  far  as  to  bring  them  into  safety,  but  so  as 
to  facilitate  their  safety  in  the  future ;  that  is  the  first 
operation  or  part  of  the  operation.  The  second  is  the 
bringing  into  safety  of  the  remainder,  whether  the  ship 
alone  or  the  shij^  and  the  remainder  of  the  cargo  not 
saved  the  first  time. 

Theoretically,  before  we  can  determine  that  the  cost 
of  thus  saving  the  cargo  at  the  top  should  be  contributed 
to  by  the  cargo  at  the  bottom  and  the  ship,  we  ought  to 
be  able  to  say  that  that  cost  is  in  some  proper  sense  a 
sacrificing  or  giving  of  a  part  for  the  sake  of  the  whole. 
The  cost  of  saving  each  particular  package  or  portion  of 
the  cargo  being  prima  facie  a  charge  on  that  specific 
portion,  it  can  only  be  properly  called  a  sacrifice  for  the 
sake  of  something  else  than  itself,  in  case  the  act,  looked 
at  by  itself,  did  not  confer  on  the  goods  directly  saved  a 
special  benefit  exceeding  its  cost.  If  it  were — as  in 
many  cases  it  is  the  case — that  the  operation  of  saving 
the  cargo,  taken  by  itself,  conferred  on  the  cargo  saved 
an  advantage  far  exceeding  its  cost,  it  is  not  easy  to  see 
on  what  ground  it  could  claim  contribution  from  the 
part  not  saved,  on  the  mere  ground  of  a  smaller  incidental 
benefit  derived  by  the  latter,  and  yet  refuse  to  make  a 
corresponding  contribution  towards  the  cost  of  subse- 
quently saving  the  latter,  on  the  plea  that,  being  itself 
already  in  safety,  it  had  ceased  to  be  interested  in  the 
fate  of  the  remainder.  This  is  not  so  in  fact ;  the  saving 
of  the  remainder  brings  that  remainder  into  existence  as 
a  contributor  towards  the  expense  of  saving  that  which 
was  saved  first. 


186 


EXTRAORDINARY  EXPENDITURE. PT.  I.       [CHAP.  IV. 

Theoretically,  then,  on  the  principle  that  he  who 
claims  equity  must  render  equity,  it  may  confidently  be 
laid  down  as  just  that  in  all  these  cases  of  complex 
salvage  operations,  either  the  whole  cost  of  saving  the 
property  from  first  to  last  should  be  treated  as  general 
average,  or  tlie  whole  from  first  to  last  should  be  treated 
as  specific  ;  that  is  to  say.  provided  the  whole  cost  from 
first  to  last  is  the  result  of  one  and  the  same  accident. 
Changes  may  occur,  especially  when  a  ship  is  ashore  or 
sunk,  either  from  the  effect  of  subsequent  bad  weather 
acting  on  the  ship  in  her  exposed  situation,  or  merely 
from  the  actual  danger  or  difficulty  of  her  position 
becoming  better  known,  so  that  the  method  of  treatment 
has  to  be  changed ;  but,  failing  any  such  changes,  it 
cannot  be  right  to  treat  the  first  step  in  the  system  of 
operations  as  general  average  and  the  later  stages  as 
specific.  This,  indeed,  is  in  the  practice  of  adjusters 
sometimes  done ;  but  this  is  only  a  part  of  a  mistaken 
tendency  to  treat  the  cost  of  an  extraordinary  discharge 
of  cargo  as  invariably  the  subject  of  general  average 
without  regard  to  its  motive. 

This  rule — either  general  average  all  through,  or 
specific  all  through — is  practically  simpler  and  freer 
from  objections  tlian  any  other.  Those  who  act  on  the 
doctrine  that  the  cost  of  discharging  should  be  general 
average  because  it  benefits  the  ship  and  all  the  cargo, 
but  that  when  the  cargo  is  out  the  cargo  should  not  con- 
tribute to  the  cost  of  heaving  off  the  empty  ship,  ought 
in  consistency  to  hold  that  so  soon  as  any  definite  portion 
of  the  cargo,  e.g.,  the  portion  in  the  between-decks,  has 
been  taken  out,  it  sliould  for  the  same  reason  cease  to 
contribute  towards  the  cost  of  taking  out  anything  then 
left  behind:  nay,  that  so  soon  as  any  one  package  is 
taken  out,  it  should  contribute   no  longer  :    a  doctrine 


SECT.  XL.]  COMPLEX  SALVAGE  OPERATIONS.  1H7 

which  would  necessitate  as  many  distinct  apportion- 
ments of  general  average  as  there  were  packages  in  the 
ship.  This  being  impracticable,  adjusters  [at  the  time 
when  Mr.  Lowndes  wrote]  often  made  rough  compromises 
by  dividing  the  cargo  into  broad  classes,  according  to  the 
several  holds  the  packages  are  stowed  in ;  an  arrange- 
ment which  has  the  objection  of  being  purely  arbitrary, 
as  well  as  indefensible  in  principle  (7^/^). 

§  41.  We  are  in  the  next  place  to  consider  the  more 
difficult  question,  by  what  tests  are  we  to  determine 
whether  to  treat  the  entire  salvage  operation  as  one  whole, 
or  as  a  complex  of  which  each  portion  is  to  be  dealt  with 
separately  ?  As  to  this,  it  will  be  convenient  to  begin  by 
setting  forth  the  decisions  which  bear  upon  the  subject. 

These  are  five — Kemp  v.  Hallidafj,  Job  v.  Lmigton, 
Moran  v.  Jones,  WaWmv  \.  Mavrojani,  and  Eogal  Mail 
Steam  Packet  Co.  v.  English  Bank  of  Rio. 

When   a    ship  with    her  cargo   on  board  has  been  Kempx. 
sunk,  if  the  cargo  can  be  more  easily  and  cheaply  saved     "  ''  '^^' 
by  itself  than  conjointly  with  the  ship,  the  cargo  cannot 
be  required  to  pay,  as  its  share  of  contribution  towards 
a  conjoint  salvage,  a  larger  sum  than  would  have  been 
the  cost  of  saving  it  separately. 

The  authority  for  this  proposition  is  Kemp  v.  Ilalli- 
daij.  There,  a  ship  was  sunk  with  her  cargo  on  board, 
and  one  of  the  questions  in  the  case  was,  whether  the 
expense  of  raising  her  with  her  cargo  was  a  general 
average  to  which  the  cargo  must  contribute.  "  I  do  not 
mean  to  say,"  said  Blackburn,  J.,  in  giving  his  judg- 
ment, "  that  in  every  case  where  a  ship  with  a  cargo  is 
submerged,  and  the  two  are  in  fact  raised  together  bv 
one  operation,  the  expenditure  incurred  must  necessarily 

[Jill)  See  the  editors'  remarks,  infra,  p.  203. 


1^8  EXTRAORDINARY  EXPENDITURE. PT.  I,   [CHAP.  IV. 

be  for  the  common  preservation  of  both.  I  think  it  is 
in  every  case  a  question  of  fact  whether  it  was  so ;  and, 
if  the  cargo  could  be  easily  and  cheaply  taken  out  of  the 
ship,  and  saved  by  itself,  it  would  not  be  proper  to 
charge  it  with  any  portion  of  the  joint  operation  :  which, 
in  that  case,  would  not  be  incurred  for  the  preservation 
of  the  cargo  "  (/). 

The  case  went  up  to  the  Exchequer  Chamber,  and 
there  the  same  principle  was  adopted.  Erie,  C.  J.,  in  enu- 
merating the  inferences  of  fact  drawn  by  the  court,  and 
which,  taken  together,  led  to  the  conclusion  that  in  that 
particular  case  the  cost  of  raising  the  sunk  ship  with  her 
cargo  in  her  was  properly  a  general  average  charge, 
mentions  as  one  of  them  that  "  The  most  convenient 
mode  of  saving  either  ship  or  cargo  or  both  was  by  rais- 
ing the  ship  together  with  her  cargo  "  [k). 

There  seems   to   be  no  reason  why  this  principle 
should  not  be  as  applicable  to  a  ship  which  is  stranded 
as  to  one  which  is  sunk. 
•^"^'^-  The  barque  Snotvdon,  on  a  voyage  from  Liverpool 

to  St.  John's,  Newfoundland,  ran  ashore  on  Malahide 
Bay,  on  the  coast  of  Ireland.  The  vessel  at  low  water 
was  high  and  dry;  and  it  became  necessar}^  to  discharge 
the  whole  of  the  cargo  and  the  ballast  before  she  was 
got  off.  After  the  cargo  was  discharged  and  placed  in 
store  in  Dublin,  the  vessel  was  got  oil  at  considerable 
cost,  with  the  aid  of  a  steam-tug,  and  by  cutting  a 
channel  for  her.     She  was  then  towed  to  Liverpool  and 

('<■)  Kemp    Y.    HaUiduij   (iSGo),    G  master  to  take  special  measm-es  for 

J3.  «&  S.  723;  34  L.  J.  (N.  S.)  Q.  B.  the  purpose  of  saving  specie,  wliicli 

233,  see  p.  243.    See  also  the  remarks  owing  to  its  small  bulk  can  be  placed 

of  Wills,  J.,  in  Royal  Mail   Steam  in  safety  -with  exceptional  facility. 
Packet   Co.   v.  EiifjJish  Bank  of  Bio  (k)  Kemp  v.  Hulliday  (1866),  L.  E. 

(1887),   19  Q.  B.  D.  362,  at  p.  375,  1  Q.  B.  520;    35  L.  J.  (Q.  B.)  156 

with  reference   to   the  dutj'  of   the  (Ex.  Ch.). 


SECT.  XLI.]  COMPLEX  SALVAGE  OPERATIONS.  l'^^ 

repaired.  The  cargo  was,  in  order  to  save  its  market, 
sent  on  by  another  vessel ;  but,  by  agreement,  the 
question  before  the  court  was  to  be  determined  as  if 
The  Snowdo7i,  after  being  repaired,  liad  carried  on  her 
cargo.  The  question  was,  wliether  the  expenses  incurred 
in  getting  off  the  ship  and  taking  her  to  Liverpool  to 
repair,  after  the  entire  cargo  was  discharged,  were 
chargeable  to  general  average,  or  to  particular  average 
on  the  ship  alone. 

Blackburn,  aro^uino^  for  the  defendants,  that  is  to  JnaMwm^ 
say,  contending  that  the  expense  in  question  should  be 
general  average,  said:  "The  argument  on  the  other 
side,  if  logically  followed  out  to  its  result,  would  prove 
that  the  taking  out  the  first  lighter-load  of  the  goods 
was  general  average,  but  the  taking  out  of  the  second, 
when  the  first  was  safe,  was  not.  But  the  whole  is  one 
transaction.  What  difference  does  it  make  that  the 
ship  and  goods  were  not  got  off  simultaneously,  when 
the  result  of  the  whole  operation  was  that  the  whole 
adventure  was  completed  and  saved  ?  " 

Lord  Campbell,  delivering  the  judgment  of  the  Lord 
Court  of  Queen's  Bench,  pronounced  that  the  expenses 
incurred  in  getting  off  the  ship  and  taking  her  to  Liver- 
pool for  repair,  after  the  entire  cargo  was  discharged 
and  in  safety,  were  not  chargeable  to  general  average, 
but  to  the  ship  alone. 

"  There  is  no  decision  on  the  specific  point,"  said  the  learned 
judge,  "and  there  is  no  mercantile  usage  to  guide  us.  We  must, 
therefore,  resort  to  the  general  principles  on  which  this  head  of 
insurance  law  rests."  [The  learned  judge  then  referred  to  Birkley 
V.  Presgrave(l),  and  pointed  out,  first,  that  the  expenses  in  ques- 
tion were  not  sacrifices,  since  the  stranding-  was  fortuitous;  and 
he  continued:]  "The  expenses,  to  constitute  general  average,  must 

(0  (IbOl),  1  East,  228. 


1  90  EXTRAORDINARY  EXPENDITURE. PT.  I.   [cHAP.  IV. 

therefore  be  brought  within  the  second  category,  '  extraordinary  ex- 
penses incurred  for  the  joint  benefit  of  ship  and  cargo.'    Although 
the  stranding  was  fortuitous,  all  expenses  incurred  from  the  mis- 
adventure till  all  the  cargo  had  been  discharged  confessedly  con- 
stituted   general    average.      But   how    could   it   be    said    that   the 
subsequent  expenses  in  getting  off  the  ship    and    taking    her    to 
Liverpool  for  repair  were  of  the  same  character?    The  employment 
of  the  steam-tug,  and  the  cutting  of  the  channel  by  which  the  ship 
was  rescued,  cannot,  as  was  contended  for,  be  part  of  the  same 
operation  as  the  unloading  of  the  cargo;  for  the  case  expressly  finds 
that  'the  steam-tug  did  no  work  at  the  ship  until  after  the  cargo 
was  landed,  and  the  coals  and  ballast  taken  out  of  her.'    We,  there- 
fore, do  not  see  how  these  expenses  are  to  be  disting'uished  from  the 
expenses  of  repairing  the  ship  when  she  had  been  brought  to  Liver- 
pool, which,  it  is  admitted,  must  fall  exclusively  on  the  owner  of 
the  ship  or  the  vmderwriter  on  the  ship,  as  particular  average.     If 
the  owner  of  the  ship  was  to  earn  the  stipulated  freight  by  carrying 
the  cargo  to  Newfoundland,  it  was  his  duty  to  repair  her  and  to 
carry  her  to  a  place  where  she  might  be  repaired.    .    .    .   We  do  not 
say  that  there  may  not  be  a  case  where,  after  a  fortuitous  stranding 
of  the  ship  and  the  cargo  has  been  unloaded,  expense  voluntarily 
incurred  by  the  owner  of  the  ship  to  get  her  off,  and  to  enable  her 
to  complete  the  voyage,  whereby  the  cargo,  which  otherwise  must 
have  perished,  is  carried  to  its  destination,  may  be  general  average; 
as  the  stranding  of  a  ship,  with  a  perishable  cargo,  on  a  desert 
island,  in  a  distant  region  of  the  globe.     But  in  the  present  case, 
the  owner  of  the  ship,  after  the  cargo  was  discharged,  appears  to 
have  done  nothing  except  in  the  discharge  of  his  ordinary  duty  as 
owner,  and  for  the  exclusive  benefit  of  the  ship  "  (m). 

}toran  v.  MoTttn  V.  Joiies  (it)  was  tried  in  the  followino-  year  in 

the  same  court.  The  ship  Tribune,  shortly  after  sailing 
from  Liverpool  for  Callao,  ran  aground  on  Elast  Hoyle 
Bank.  She  was  in  ballast,  under  charter  to  fetch  a  cargo 
from  the  Chinchas ;  but  she  had  on  board,  bv  the  char- 
terer's  permission,  a  small  quantity  of  goods  belongino- 
to  other  parties  (o).     Two  days  after  she  ran  ashore,  the 

()?>)  Job  V.  Lanrjton  (1856),  G  E.  &  (n)  (1857),  7  E.  &  B.  523. 

B.  779,  at  p.  790.  [o)  Mr.    Lowndes    said    that    the 


SECT.  XLI.]  COMPLEX  SALVAGE  OPERATIONS.  1^1 

weather  being  more  moderate,  assistance  was  procured 
from  Liverpool,  and  men  were  employed  saving  from 
alongside  the  wreck  of  the  ship's  foremast  which  had 
been  cut  away,  the  materials  of  the  ship,  and  the  goods, 
all  of  which  were  sent  in  lighters  to  Liverpool.  After- 
wards, a  stream  anchor  was  carried  out,  the  ship  was 
scuttled,  about  300  tons  of  ballast  were  thrown  over- 
board, and  then  the  ship,  being  kept  free  by  pumping, 
floated.  She  was  then  towed  by  two  steamers  back  to 
Liverpool,  and  there  repaired.  The  only  question  raised 
was,  whether  the  sum  of  643/.,  which  had  been  expended, 
after  the  cargo  was  taken  out,  for  the  purpose  of  floating 
the  ship  and  bringing  her  to  Liverpool  for  repair,  should 
be  likewise  treated  as  general  average.  If  not,  tlio  fur- 
ther question  was  raised  whether  it  should  be  borne  by 
the  ship  and  freight  conjointly,  or  by  the  ship  alone. 


■JtlU, 


For  the   plaintiff  it   was    argued    by    Broun    that,  ^'f^' 

arifiando. 

whereas  in  Job  v.  Langton  the  taking  out  of  the  cargo, 
and  the  subsequent  saving  of  the  ship,  were  two  distinct 
operations,  it  was  not  so  here,  but  the  whole  was  one 
continuous  operation,  which  commenced  before  the  goods 
were  landed,  and  the  expenses  in  respect  of  which  could 
not,  therefore,  be  separated  into  distinct  j^ortions.  In 
such  a  case  the  goods  must  contribute  to  the  general 
average  upon  all  the  expenses  of  the  preservation,  as 
was  decided  in  the  Supreme  Court  of  Philadelphia  in 
Bevan  v.  Bank  of  the  United  States  [  p).  No  doubt  it 
would  be  otherwise  where  tlie  goods  were  taken  out 
merely  for  the  purpose  of  saving  them,  as  was  tlie  case 

goods    belonged    to   the   shipowner.  that  the  vessel  sailed  with  a  small 

There  was  a  statement  to  this  effect  quantity  of    goods   shipped    by   the 

in   the    avernge   adjustment,    which.  shipowner   "on   freight    from  other 

was,  accoidiug  to  the  reports,  agreed  parties." 

to    be    accurate   iu    its    facts;     but  (/»)  (1839),  4  Wharton,  301. 
the     special     case     says     distinctly 


]92 


EXTRAORDINARY  EXPENDITURE. PT.  I.   fCHAP.  IV. 


lilackbur)/, 
arguendo. 


Lord 
Campbell. 

Freight  iii 
any  case 
liable. 


in  Bedford  Commercial  Ins.  Co.  v.  Parker  (q),  decided  in 
the  Supreme  Court  of  Massachusetts  ;  that  state  of  things 
does  not  appear  on  the  facts  of  this  case ;  on  the  con- 
trary, the  object  of  detaching  the  goods  was  to  save  the 
whole.  [Lord  Campbell,  C.  J. :  Had  the  goods  remained 
on  board  they  would,  of  course,  have  been  liable  to 
contribute  to  the  general  average ;  you  will  say  that 
these  goods  virtually  were  on  board.]  It  might  be  so 
put.  The  case  shows  a  series  of  connected  steps  taken 
to  carry  out  the  adventure. 

For  the  defendant  it  was  argued  by  Blackburn,  that 
the  master  in  warehousing  the  goods  must  be  taken  to 
have  acted  for  the  benefit  of  the  owner  of  the  goods ;  and 
that,  after  the  warehousing,  the  owner  of  the  goods 
ceased  to  have  an  interest  in  the  preservation  of  the  ship. 
What  happened  after  the  goods  were  saved,  though 
necessary  to  enable  the  ship  to  earn  freight,  was  not  more 
so  than  the  repairs  of  the  ship.  The  mode  of  apportion- 
ing these  charges  ought  not  to  be  affected  by  the  circum- 
stance that  the  ship  and  freight  belonged  to  the  same 
person. 

Lord  Campbell : 

"  In  this  case  we  never  doubted  that  the  defendant,  as  under- 
writer on  the  freight,  was  liable  to  a  contribution  to  general  average 
in  respect  of  the  sum  of  6i3Z.,  the  expenses  incurred  in  order  to  get 
the  ship  off  from  the  bank  on  which  she  was  stranded,  whether 
the  goods  were  or  were  not  liable  to  contribute  to  this  portion  of 
the  loss.  It  is  admitted  that  the  ship  could  not  have  been  got  off 
and  completed  her  voyage  unless  these  various  expenses  had  been 
incurred.  Therefore,  without  these  expenses,  there  would  have  been 
a  total  loss  of  the  freight,  amounting  to  the  sum  of  6,7501.  Even 
if  the  goods  were  not  liable  to  contribute,  on  the  ground  that  they 
were  not  exposed  to  any  peril  when  these  expenses  were  incurred, 
still  the  freight,  which  was  then  exposed  to  peril  and  has  been  saved, 


(2)  (1823),  2  Pickering,  1. 


SECT.  XLI.]  COMPLEX  SALVAGE  OPEKA'IIONS. 

ought  to  contribute  as  if  there  had  never  been  any  goods  on  board, 
and  the  ship  had  sailed  from  Liverpool  to  Callao  in  ballast.  Usually, 
wherever  there  is  a  general  average,  ship,  freight,  and  goods  all 
contribute  to  it;  but  if  there  be  no  goods  on  board,  and  by  a  volun- 
tary sacrifice  ship  and  freight  are  saved  from  a  common  peril,  the 
freight  ought  rateably  to  contribute  to  the  loss;  and,  where  there 
are  separate  insurances  on  ship  and  freight,  the  calculation  must 
be  made  as  to  the  amount  of  the  contribution  by  each,  although 
the  whole  of  the  freight  which  was  in  peril  is  to  be  received  by 
the  owner  of  the  ship,  and  without  insurance  the  whole  of  the  loss 
would  fall  upon  him. 

"  But  the  sum  for  which  this  defendant  is  liable  will  depend,  to  Whether 

cargo  also 
a  certain  degree,  upon  the  question  whether,  under  the  circumstances  Hable. 

stated,  these  goods  are  to  contribute  in  respect  of  the  6i3l.;  and 
upon  this  question  likewise  we  are  bound  to  give  our  opinion.  The 
goods  had  been  taken  from  the  ship,  and  put  on  board  a  lighter 
before  these  expenses  were  incurred;  and  if  this  had  been  a  sepa- 
rate operation  by  which  they  were  intended  to  be  saved  for  the 
benefit  of  the  owner  of  the  goods,  we  should  have  thought  (as  in 
Job  V.  Lang  ton  (r))  that  the  goods  were  not  liable  to  contribute 
to  the  expenses  subsequently  incurred.  Looking  however,  to  the 
facts  stated  in  this  special  case,  it  seems  to  us  that  the  act  of 
putting  the  goods  in  the  lighter  was  only  part  of  one  continuous 
operation,  viz.,  getting  the  ship  off  the  bank  on  which  she  was 
stranded,  and  sending  her  to  Liverpool,  where  she  might  be  re- 
paired with  a  view  to  prosecute  the  original  adventure.  When  she 
got  to  Liverpool,  the  operation  of  saving  her  from  shipwreck  was 
completed,  and  the  whole  expense  of  the  repairs  fell  upon  the  owner 
as  owner,  and  must  be  borne  by  him  in  that  capacity,  or  by  the 
imderwriters  of  the  ship;  but  the  expense  of  this  continuous  opera- 
tion, for  the  common  benefit  of  ship,  goods,  and  freight,  are  the 
subject  of  a  general  average.  In  Job  v.  Langton  (s),  we  considered 
that  the  goods  had  been  saved  by  a  distinct  and  completed  opera- 
tion, and  that  afterwards  a  new  operation  began  which  could  not 
be  properly  distinguished  from  the  repairs  done  to  the  ship  to  enable 
her  to  pursue  the  voyage.  '  The  steam-tug  did  no  work  at  the 
ship,'  and  does  not  appear  to  have  been  engaged  '  until  after  the 
cargo  was  landed,  and  the  coals  and  ballast  taken  out  of  her.'  .  .  . 
But  in  the  case  on  which  we  have  now  to  adjudicate,  the  goods  were 

(r)  (I80G),  ()  E.  &  B.  779.  (0  Ibid. 

]..  O 


193 


194  EXTRAOKDINAKY  EXPENDITURE. — PT.  I.       [CHAP.  IV. 

put  into  a  lighter  by  the  master  of  the  ship,  along  with  materials 
of  the  ship  saved  from  the  wreck,  and  they  remained  in  the  custody 
and  under  the  control  of  the  master  till  the  ship  was  repaired,  when 
they  were  reloaded  in  the  ship  and  carried  forward,  without  any 
interference  by  the  owner  of  the  goods,  to  their  destined  port. 
Unless  it  had  been  intended  that  an  operation  should  be  under- 
taken and  completed,  by  which  both  ship  and  goods  should  be 
rescued  from  the  peril  to  which  they  were  exposed,  nothing  might 
have  been  done,  and  the  goods  might  have  perished.  Because  the 
goods  happened  to  be  saved  in  the  earliest  part  of  the  operation, 
this  can  be  no  sufficient  reason  for  saying  that  they  ought  not  to 
contribute  to  all  the  expenses  of  the  operation  which  contemplated 
the  benefit  of  all  the  interests  imperilled  by  the  stranding.  .  .  . 
The  result  is  that,  in  our  oj)inion,  the  .  .  .  aj)portionment  ...  is 
right,  on  the  principle  of  charging  the  643Z.  to  general  average  "  (t). 

Waithewy.  The  third  of  these  cases,   Walthew  y,   MavrojaniiuX 

was  that  of  the  ship  Southern  Belle,  which,  wliile  lying  at 
Calcutta,  laden  with  a  cargo  of  linseed  for  London,  was 
driven  from  her  moorings  by  a  cyclone,  and  left  fast 
agromid  on  a  mud-bank.  A  survey  was  held  on  her,  and 
it  was  recommended  that  the  cargo  and  ballast  should 
be  discharged,  and  the  ship  dismantled,  it  being  in  the 
surveyor's  opinion  impossible  to  remove  the  ship  from 
the  strand.  B^^the  19th  October  the  whole  of  the  cargo 
was  safely  warehoused  in  Calcutta.  On  that  day  a  sur- 
veyor examined  the  ship,  and  advised  that  she  would 
not  float  without  extraordinary  means  being  employed 
to  get  her  off  the  strand.  Tenders  having  been  invited, 
a  firm  at  Calcutta  contracted  with  the  plaintiff's  agents 
to  float  the  ship ;  but  on  the  24th  of  November,  their 
efforts  having  proved  unavailing,  they  declared  their 
inability  to  perform  the  contract,  and  abandoned  the 
attempt.  The  plaintiff's  agents  then  made  a  fresh  con- 
tract with  Messrs.  Burns  &  Co.  for  2,300/.  to  float  the 

.{t)  Moran  v.  Jones  (1857),  7  E.  &  B.  523. 
(tt)  (1870),  L.  E.  5Exch.  116. 


SECT.  XLI,]  COMPLEX  SALVAGE  OPERATIONS.  195 

ship ;  and  they,  by  constructing  an  embankment  romid 
the  vessel,  so  as  to  form  a  dock,  which  they  afterwards 
tilled  with  water,  succeeded,  on  the  ''31st  of  December, 
in  floating  her. 

Here  the  question  was  raised,  whether  this  2,1300/. 
was  the  subject  of  general  average.  In  the  Court  of  Ex- 
chequer it  was  held  not  to  be  so,  but  this  w^as  appealed 
against.  For  the  plaintiffs  it  was  argued  that  the 
present  case  was  more  similar  in  its  facts  to  Moran  v. 
Jones  [x)  than  to  Joh  v.  Langton  [y) ;  and  that  the  true 
principle  is  that,  so  long  as  the  voyage  is  not  abandoned, 
and  the  goods  remain  in  the  care  and  custody  of  the 
shipowners  for  tlie  purpose  of  the  voyage,  although  they 
may  not  be  actually  on  board,  the  whole  is  one  common 
enterprise  and  adventure,  in  which  the  owner  of  the 
ship  and  the  owner  of  the  goods  are  alike  interested; 
and  consequently  that  whatever  is  done  by  the  ship- 
owner for  the  purpose  of  averting  a  risk  which  threatens 
that  adventure,  is  done  for  the  common  benefit.  To  this, 
however,  Bovill,  C.  J.,  at  once  objected,  "  That  propo- 
sition would  include  equally  repaii's  which  are  necessary 
for  enabling  the  ship  to  complete  the  voyage." 

The  decision  of  the  court  was  unanimous  that  the  bovUI,  c.  j. 
expense  should  not  be  general  average.     Bovill,  C.  J.,  said : 

"  I  am  of  opinion  that  the  judg-ment  of  the  court  below  must  be 
affirmed.  There  is  no  doubt  that  the  expense  of  all  repairs  to  the 
vessel  rendered  necessary  by  the  ordinary  perils  of  navigation,  and 
which  are  required  to  enable  it  to  prosecute  the  voyage  and  com- 
plete the  adventure,  must  be  borne  by  the  owner.  He  has  under- 
taken, subject  to  the  usual  exceptions,  to  carry  the  cargo  to  its 
destination  and  there  deliver  it,  and  therefore  the  costs  of  repairs 
are  expenses  incurred  for  the  benefit  of  the  ship  alone,  and  cannot 
be  treated  as  the  subject  of  general  average.     If,  however,  loss  or 

{x)  (IS57),  7  E.  &  B.  523  ;  26  L.  J.  (//)  (1856),  6  E.  &  R.  77&;  2(3  L.  J. 

.(Q.  B.)  187.  -  (Q.  B.)  97. 

o2 


196  EXTRAORDINARY  EXPENDITURE. —  PT.  I.   [CHAP.  IV. 

expense  is  occasioned  by  reason  of  some  extraordinary  course  taken, 
or  risk  incurred,  for  the  benefit  of  all  concerned,  then  those  who, 
by  reason  of  their  being  exposed  to  a  common  danger,  are  interested 
in  that  course  being  taken  or  that  risk  incurred,  must  contribute 
their  share.  Upon  the  general  principle  there  is  no  dispute.  But 
from  time  to  time  endeavours  have  been  made  to  engraft  exceptions 
upon  this  rule.  In  Hallett  v.  Wigram  (z),  an  attempt  was  made  to 
throw  the  expenses  of  repairs  of  the  ship  upon  the  owners  of  cargo, 
and  upon  exactly  the  same  grounds  on  which  it  has  been  contended 
in  the  present  case  that  the  expenses  in  question  should  be  treated 
as  general  average.  In  order  to  test  the  principle,  the  point  was 
there  raised  by  the  defendants  upon  the  pleadings,  in  an  action 
in  which  the  owners  of  the  cargo  sued  the  shipowners  for  the  value 
of  a  portion  of  the  cargo,  sold  to  raise  money  for  repairs  which 
were  rendered  necessary  by  tempestuous  weather."  [After  referring 
to  the  pleadings,  his  Lordship  continued:]  "Therefore,  by  the  most 
positive  and  distinct  allegations,  the  principle  was  there  sought  to 
be  established  that  if  the  repairs  are  necessary  for  enabling  the 
ship  to  carry  the  cargo,  and  would  not  have  been  necessary  but  for 
that  purpose,  and  are  in  that  sense  done  for  the  common  benefit 
of  both  ship  and  cargo,  the  cargo  must  contribute.  The  court,  how- 
ever, decided  against  this  principle.  ...  In  that  case,  therefore, 
the  Court  of  Common  Pleas  deliberately,  and  upon  the  strongest 
possible  allegations  of  fact,  declined  to  adopt  the  principle  now 
contended  for."  The  learned  judge  then  pointed  out  that  in  Job 
V.  Langton  (a)  the  facts,  and  the  point  at  issue,  were  very  much 
the  same  as  in  the  present  case.  It  had  been  argued  that  Moran 
V.  Jones  (b)  was  inconsistent  with  it,  and,  as  the  later  decision, 
was  to  be  preferred.  "Now  Moran  v.  Jones,"  he  continued,  "was 
a  peculiar  case.  The  facts  were  somewhat  similar  to  those  of  the 
present  case,  though  not  so  similar  as  those  in  Job  v.  Langton  {c); 
but,  in  construing  the  decision,  we  must  take  not  only  the  facts 
stated,  but  also  the  inference  which  the  court  drew  from  them.  The 
court  did  not  affect  to  interfere  with  the  principle  laid  down  in  Job 
V.  Langton  {c),  which  was  a  considered  judgment  pronounced  after 
an  elaborate  argument;  on  the  contrary,  they  expressly  adhered 
to  that  decision,  and  the  whole  case  turned  on  a  difference  in  the 

(2)  (1850),  9  C.  B.  580.  {b)  (1857),  7  E.  &  B.  523  ;  26  L.  J. 

(a)  (1856),  6  E.  &  B.  779 ;  26  L.  J.       (Q.  B.)  187. 
(Q.  B.)  97.  (c)  (1856),  6  E.  &  B.  779 ;  26  L.  -T. 

(Q.  B.)  97.. 


SECT.  XLI.]  COMPLEX  SALVAGK  OPERATIONS. 

facts  and  on  the  inference  which  the  court  drew  from  those  facts." 
.  .  .  After  referring  to  the  language  of  Moran  v.  Jones  (d), 
above  set  forth,  the  learned  judge  concluded  as  follows:  "  This  case, 
therefore,  does  not  interfere  witli  the  decision  in  Job  v.  Langton  (e). 
But  if  Mr.  Aspinall  were  right,  and  there  were  an  inconsistency, 
I  should  be  prepared  to  abide  by  the  latter  case.  .  .  •  The 
English  courts  have  held  strictly  that  unless  there  be  a  common  risk, 
and  a  voluntary  sacrifice,  or  an  extraordinary  expenditure  incurred 
for  the  joint  benefit  of  ship  and  cargo,  a  claim  to  general  average 
is  not  established.  Now  to  apply  this  principle  to  the  present  case. 
It  is  here  stated  that,  the  ship  having  been  driven  ashore  in  the 
cyclone  of  the  5th  of  October,  the  cargo  was  landed  and  was  safe 
on  shore  by  the  19th,  but  that  the  ship  was  then  still  on  the  bank, 
exposed  to  grave  peril.  The  goods  being  then  safe,  what  difference 
would  it  have  made  to  their  owners  if  the  ship  had  been  over- 
whelmed by  the  sea  and  sunk?  After  this  an  effort  was  made  to 
get  the  ship  off',  which  proved  abortive;  then  another  and  successful 
effort  was  made,  and  it  is  in  respect  of  the  expense  incurred  in  this 
last  attempt  that  the  plaintiffs  make  this  claim  of  general  average. 
But  when  those  expenses  were  incurred  the  goods  had  already  ceased 
to  be  connected  with  the  ship,  except  in  so  far  as  that  if  the  ship 
were  got  off  she  would  be  able  to  carry  on  the  goods  to  England; 
and  it  is  not  shown  that  any  advantage  resulted  to  the  owners  of 
the  goods  from  their  being  carried  on  in  that  ship  rather  than  in 
any  other;  and  if  general  average  were  claimed  on  that  footing  it 
would  have  to  be  assessed  on  altogether  a  different  scale  from  that 
of  the  value  of  the  goods.  No  claim  of  that  kind  is,  however,  made. 
In  short,  whereas  to  ground  a  claim  for  general  average  there  must 
be  a  danger,  actual  or  impending,  common  to  both  ship  and  cargo, 
here  the  cargo  was  safe  and  the  ship  only  in  peril;  it  was  indifferent 
to  the  owners  of  the  cargo  whether  the  ship  floated  or  not,  and 
there  was  therefore  no  sacrifice  made,  or  extraordinary  expense  in- 
curred, to  save  both  ship  and  cargo,  or  for  the  common  benefit  of 
both. 

"  The  claim  has  been  put  on  the  ground  that  the  adventure  was 
not  complete,  and  that  until  it  was  terminated  there  was  a  common 
interest  that  it  should  be  carried  out.  But  that  argument  is  in 
direct  contradiction  to  the  principle  laid  down  with  respect  to  re- 


{(I)  (lSo7),  7  E.  &  B.  523  ;  26  L.  J.  (e)  (1856),  6  E.  &  B.  779  ;  26  L.  J. 

(Q.  B.)  187.  (Q.  B.)  97. 


197 


198  EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV, 

pairs,  which  are  equally  necessary  to  enable  the  ship  to  complete 
the  adventure,  but  which  are  not  matters  for  general  average;  and, 
independently  of  authority,  it  also  fails  to  show  any  common  peril, 
or  any  sacrifice  made  to  secure  a  common  benefit.  That  the  argument 
does  so  fail,  and  that  general  average  does  not  depend  on  whether 
the  adventure  can  or  cannot  be  carried  out,  is  abundantly  shown 
by  the  cases  to  which  I  have  already  referred.  The  judgment  below 
must  therefore  be  affirmed  "(e). 

The  other  judges,  Mellor,  Montague  Smith,  Lush^ 
Hannen,  and  Brett,  J  J.,  concurred.  M.  Smith,  J., 
said  : 

"  I  only  wish  to  add,  that  I  think  there  may  be  eases  where, 
though  the  goods  are  landed  and  so  far  in  safety,  yet  the  adventure 
of  the  owner  of  the  goods  may  still  be  in  peril,  as  in  the  case  of 
perishable  goods  landed  on  a  desert  island  in  a  distant  and  unfre- 
quented part  of  the  world.  But  here,  not  only  were  the  goods 
landed,  but  I  draw  the  inference  that  it  was  indifferent  to  the  owner 
whether  they  went  forward  to  England  in  The  Southern  Belle,  or 
in  any  other  ship." 

Hannen,  J. ,  said  : 

"Ordinarily,  expenses  inciu'red  subsequently  to  the  removal  of 
the  goods  can  only  be  incurred  to  save  the- ship,  and  are  not  for  the 
benefit  of  the  cargo  "  (/). 

Royal  Mail  [The  Tagus,  on  a  voyage  from   Rio  de  Janeiro  to 

Steam  Packet      ri         i  ^         •  ii  •         e    J^  ^  e 

Co.  V.  English  bouthamptou,  havmg  on  board  specie  oi  the  value  oi 
125,000/.,  partly  belonging  to  the  defendants,  and  a 
general  cargo,  ran  aground  on  an  island  near  Bahia  and 
lay  in  a  dangerous  position.  The  weather  being  bad, 
the  master  landed  the  specie  on  the  next  day  on  the 
island,  and  afterwards  jettisoned  some  of  the  cargo,  and 
with  the  assistance  of  several  tugs  got  the  ship  off  the 
ground.     After  the  specie  was  landed,  it  was  taken  to 

(e)   Walthew  v.  Mavrojani  (1870),  L.  R.  5  Exch.  116,  at  p.  119. 

(/)  .S'.  C,  at  p.  125. 


SECT.  XLI.J  COMPLEX  SALVAGE  OPERATIONS. 

Bahia  and  forwarded  in  another  vessel ;  but  the  parties 
agreed  that  for  the  purpose  of  ascertaining  whether  any 
general  average  contribution  was  due  from  the  defen- 
dants it  should  be  treated  as  having  been  carried  by  the 
plaintiffs  in  The  Tagus  to  Southampton. 

The  plaintiffs  claimed  a  contribution  from  the  de- 
fendants in  respect  both  of  the  jettison,  the  expense  of 
floating  the  ship,  and  the  cost  of  landing  the  specie  and 
conveying  it  to  Bahia ;  and  a  special  case  having  been 
stated,  their  counsel  argued  before  a  Divisional  Court 
that  the  specie  was  landed  on  the  island,  and  sent  on  to 
Bahia,  as  part  of  a  continuous  salvage  operation,  under- 
taken for  the  common  preservation  of  ship,  cargo  and 
freight,  of  which  the  jettison  and  the  employment  of  the 
tugs  formed  another  part.  The  court  held,  however, 
that  the  landing  of  the  specie  was  not  part  of  a  general 
average  act,  and  that  the  specie  was  not  bound  to  con- 
tribute to  the  expense  of  getting  the  ship  off  the  shore. 
Mr.  Justice  Wills,  after  reviewing  the  authorities,  said  : 

"  Cases,  no  doubt,  may  occur  in  which  it  may  be  difficult  to  say 
Avhethei-  the  purpose  for  which  goods  are  removed  is  that  of  lighten- 
ing the  ship  or  of  saving  the  goods,  and  there  will  no  doubt  from 
time  to  time  be  instances  in  which  it  is  impossible  to  separate  the  one 
purpose  from  the  other.  '  The  mere  fact  that  the  cargo  is  unladen, 
although  it  is  done  in  part  for  the  purpose  of  saving  the  goods,  yet 
if  it  is  also  done  for  the  purpose  of  lightening  the  vessel  and  as  a 
means  of  causing  her  to  float,  and  of  saving  her  from  the  common 
peril  will  not  necessarily  divest  the  transaction  of  its  character  as 
an  act  performed  for  the  joint  benefit  of  ship  and  cargo  ':  McAndrews 
V.  Thatcher  {g)  in  the  Supreme  Court  of  the  United  States.  It  is 
impossible  with  reference  to  such  a  matter  to  lay  down  any  rigid 
or  inflexible  rule.  The  question  will  be  one  of  circumstance  and 
degree,  and  each  case  must  depend  upon  its  own  facts.  .  .  .  The 
whole  of  the  specie  in  this  case  weighed,  we  are  told,  about  a  ton 
and  a  half.     The  Tagus  is  a  vessel  of  some  3,000  tons  burthen. 

{(j)  (1865),  3  Wallace,  347,  at  p.  370. 


199 


200 


EXTRAORDINARY  EXPENDITURE. 


-PT.  I.       [chap.  IV. 


Practical  re- 
sult of  above 
decisions. 


Mr.  Carver's 
theory. 


The  ease  to  the  vessel  could  be  nothing  at  all.  The  combined  value 
and  smallness  of  total  weight  would  be  certain  in  any  case  to  save 
the  specie  from  jettison.  Its  value  and  the  facility  with  which  it 
could  be  got  ashore  would  be  certain,  in  any  case  where  it  was 
possible  to  land  it,  to  save  it  from  being  left  on  board,  and  I  cannot 
doubt  that  its  removal  was  carried  out,  not  in  any  sense  or  degree 
as  a  means  of  securing  the  common  safety  of  ship  and  cargo,  but 
simply  for  the  purpose  of  saving  the  specie  itself.  I  think,  there- 
fore, that  when  the  general  average  loss  was  incurred,  in  whatever 
sense,  restricted  or  enlarged,  that  phrase  can  be  properly  used,  it 
had  ceased  to  be  at  risk,  that  upon  no  reasonable  view  of  the  facts 
can  its  removal  be  considered  as  a  part  of  the  means  taken  for  saving 
any  common  adventure.  I  am  consequently  of  opinion  that  it  is 
not  liable,  using  the  words  of  the  special  case,  '  to  contribute  to  the 
jettison  or  to  any  of  the  expenses  of  getting  the  ship  off  the  ground 
incurred  after  it  was  landed '"  (/i).] 

§  42.  Having  thus  set  forth  the  decisions  bearing 
on  our  question,  we  return  now  to  the  question  itself, — 
which  may  be  stated  thus, — when  a  ship  with  her  cargo 
has  been  stranded  or  sunk,  and  is  to  be  brought  into 
safety,  not  all  at  once,  but  by  a  series  of  connected 
operations,  by  what  tests  or  in  what  manner  shall  it  be 
determined  whether  the  entire  cost  of  those  operations 
from  first  to  last  shall  be  borne  by  a  general  contribution 
on  the  part  of  the  whole  property,  as  if  it  were  a  single 
operation,  and  not  be  borne  specifically  by  the  property 
saved  by  each  specific  portion  or  stage  in  the  operation. 

On  this  subject  Mr.  Carver,  in  his  book  on  Carriage 
by  Sea,  has  put  forward  a  theory  which  deserves  careful 
consideration.     His  words  are  as  follows: — 

"  §  398.  If  the  ship  and  cargo  can  be  saved  by  a  connected  set 
of  operations,  though  in  separate  parts,  it  seems  that  the  expense  of 
the  Avhole  operations  should  be  treated  as  a  general  average  expendi- 
ture, unless  that  would  impose  a  greater  burden  on  the  cargo  than 


(/i)  Royal  Mail  Steam  Packet  Co.  v.  English  Bank  of  Rio  {XSSI),  19  Q.  B.  I). 
362. 


SECT.  XLII.]         COMPLEX  SALVAGE  OPERATIONS. 

the  cost  of  saving  it  alone  (^).  Thus,  if  the  ship  could  be  floated 
off  by  putting  the  cargo  into  lighters  for  a  time,  it  seems  clear  that 
the  expenses  of  discharging  into  the  lighters  ought  not  to  fall  wholly 
on  the  cargo,  though  that  may  have  been  essential  for  its  own  safety. 
It  must  be  presumed  in  such  a  case  that  the  master  meant  to  incur 
them  for  the  benefit  of  the  whole,  ship  and  cargo  together. 

"  So  also  in  other  cases  where  the  cost  of  the  first  discharge  is 
so  great,  in  proportion  to  the  expenses  of  afterwards  rescuing  the 
ship,  that  it  is  more  favourable  in  the  interest  of  the  cargo  that  the 
whole  expenses  should  be  treated  as  general  average  expenses. 

"  For  if,  in  such  cases,  the  operation  of  discharging  were  treated 
as  a  separate  burden  on  the  cargo  discharged,  the  ship  and  the 
•cargo  remaining  in  her  would  have  the  benefit  of  that  as  well  as 
of  the  subsequent  operations,  and  yet  would  bear  a  smaller  share 
•of  the  whole  expenditure.  The  principles  of  general  average  require 
that,  as  far  as  possible,  the  person  at  whose  expense  a  sacrifice  has 
been  made  should  be  put  in  the  same  position  as  if  the  property 
of  another  had  been  selected  for  the  sacrifice,  and  that  the  willine:- 
ness  to  incur  the  disproportionately  heavy  first  expenses,  which  led 
to  a  benefit  for  the  whole  of  the  interests  concerned,  should  not  be 
discouraged. 

"  But  if  the  ship  was  in  such  a  position  that  the  prudent  course 
in  the  interest  of  the  cargo,  having  regard  to  its  own  safety,  and  to 
probable  cost,  was  to  remove  it  and  bring  it  into  a  place  of  safety, 
the  expense  of  doing  this  should  fall  upon  the  cargo-owners 
alone  (k).  And  the  fact  that  the  ship  may  thereby  have  been  helped 
to  come  off  should  not  make  a  difference.  For  the  expenditure  on 
behalf  of  the  cargo,  though  it  may  have  incidentally  benefited  the 
ship,  was  not  a  sacrifice;  on  the  hypothesis,  it  was  the  best  thing 
that  could  be  done  for  the  cargo.  The  whole  expenditure  was  neces- 
sary in  its  own  interest,  and  was  incurred  for  itself,  not  for  the 
rest. 

'With  regard,  then,  to  the  first  of  the  above  questions,  it  may 
perhaps  be  said,  generally,  that  if  at  the  time  the  cargo  was  dis- 

(j)  Ki'ii(j)   V.    Hallidmj   (1865),    34  fu-st  to  be  saved  and  at  the  least  ex- 

L.  J.  (Q.  B.)  233.  pense,  the  further  privilege  of  being 

[h)  "There  is  an  obvious  unfair-  able  to  require  the  cargo  underneath 
ness  in  giving  to  the  cargo  at  the  to  contribute  towards  the  expense  of 
top  and  near  to  the  hatches,  over  and  saving  it,  while  itself  does  not  con- 
above  the  natural  advantage  of  its  tribute  towards  the  expense  of  saving 
position  in  such  cases,  of  being  the  the  cargo  underneath." 


201 


202 


EXTRAORDINARY  EXPENDITURE. — PT.  I.   fcHAP.  IV 


The  two 
operatious 
should  be 
treated  dis- 
tinctly, or 
else  as  one 
whole. 


Benecke. 


charged  it  was  probable  that  the  cost  of  the  discharge  would  bear 
so  large  a  proportion  to  that  of  getting  the  ship  off  afterwards, 
that,  taking  risks  into  account,  it  was  in  the  interest  of  the  cargo 
to  carry  on  the  whole  operation  as  one,  then  the  presumption  is 
that  the  discharge  was  meant  to  be  a  general  average  act;  but  that 
otherwise  it  should  be  regarded  as  done  for  the  benefit  of  the  cargo, 
and  the  expenses  should  be  charged  to  that"  (l). 

Mr,  Carver  concludes  as  follows  : 

"  The  two  operations,  then,  of  taking  out  the  cargo  and  getting 
the  ship  off,  may  be  regarded  as  separat-e  transactions  for  the  benefit 
of  the  parts,  or  as  constituting  one  whole  transaction  for  the  benefit 
of  the  whole.  The  first  operation  is  only  a  general  average  act 
when  both  have  that  character;  and  the  same  is  true  of  the  second. 
One  or  other  view  should  be  adopted  throughout;  the  ship  should 
not  contribute  to  the  cargo,  unless  the  cargo  contributes  to  the  ship, 
and  vice  versa"  (m). 

Benecke's  great  authority  is  substantially  on  the 
same  side.  He  says  (p.  216),  ''Nor  do  the  expenses  of 
unloading  a  stranded  vessel  belong  to  general  average  if 
before  the  unloading  it  was  uncertain  whether  by  that 
measure  the  vessel  may  be  set  afloat  or  not,  and  it  be 
afterwards  found  tliat  other  means  must  be  employed  to 
bring  the  empty  vessel  olf.  For  it  would  be  evident  that 
the  unloading  was  necessary  for  saving  the  (/oods,  inde- 
pendent of  the  benefit  which  the  vessel  derived  from  it." 

Surely  the  real  question  must  in  each  case  be,  Has 
there  been  a  sacrifice  ?  in  other  words,  was  the  cargo 
taken  out  for  its  own  sake,  or  for  the  sake  of  something 
else  ?  In  these  cases,  the  degree  of  danger  to  which  the 
property  stranded  or  sunk  is  subject  has  a  very  wide 
range.  The  ship  may  be  lying  on  a  shelving  edge  of 
rock,  exposed  to  Atlantic  gales,  in  danger  momentarily 
of  slipping  into  deep  water  and  being  totally  lost :  her 


(/)  Carver,  Carnage  by  Sea,  §  398 
[m]  lb.,  §400. 


SECT.  XLII.]         COMPLEX  SALVAGE  OPERATIONS. 


203 


cargo  may  be  rapidly  becoming  worthless :  anything 
that  can  be  snatched  from  destruction  will  be  a  godsend. 
Or  she  may  be  stranded  in  the  Thames,  on  a  mud-bank, 
tight  and  for  the  time  being  safe.  Taking  out  the  cargo 
in  the  latter  case  is  not  saving  it,  but  subjecting  it  to  an 
expense  for  the  sake  of  the  ship.  In  the  former  case, 
whatever  is  taken  out  by  salvors,  though  it  were  at  a 
salvage  of  25  or  50  per  cent.,  is  far  better  off  than  what 
is  left  behind.  It  seems  reasonable  that,  whilst  the  ship 
shall  contribute  to  the  Thames  discharge,  yet  in  the 
former  case,  whether  the  ship  is  eventually  floated  or 
not,  the  cargo  first  saved  shall  bear  its  own  salvage,  and 
whatever  is  saved  afterwards  shall  bear  its  own  expenses. 
And  intermediate  cases  shall  be  dealt  with  according  as 
thev  more  resemble  the  first  or  the  second  of  these  two : 
or,  in  other  words,  according  as  the  facts  raise  a  reason- 
able presumption  that  the  principal  motive  for  taking 
out  the  cargo  was  to  save  the  cargo  itself,  or  to  save 
something  else.  This  view,  as  Mr.  Carver  says,  with 
reference  to  an  earlier  edition  of  this  book,  does  not 
materially  differ  from  his  own. 

It  must  be  borne  in  mind,  however,  that  this  is  a 
question  not  yet  decided  by  the  courts. 

[It    will    be    noticed    that    the    doctrine    strongly  Editors'  view 

1     Tn-        / 1  ,  as  to  complex 

advocated  both  by  Mr.  Lowndes  and  Mr.  Carver,  that  salvage 
in  all  these  cases  of  complex  salvage  operations  either 
the  whole  cost  of  saving  the  property  should  be  treated 
as  general  average,  or  there  should  be  no  contribution, 
finds  no  support  in  the  decisionti  which  have  just  been 
discussed.  The  judgment  in  Job  v.  Langton{n)  is  indeed 
an  express  authority  to  the  contrary,  although  it  was 
unnecessary  to  decide  the  point.  The  theory  that  on 
grounds  of  equity  all  the  operations  or  none  should  be 

{)()  Aide,  p.  188. 


204 


EXTRAORDINARY  EXPENDITURE. PT.  I.   [CHAP.  IV. 

treated  as  general  average  is,  no  doubt,  an  attractive 
one.  Nevertheless,  the  editors  think  that  opinions  may 
differ  as  to  the  equity  of  compelling  the  property 
already  saved  to  contribute  to  the  cost  of  operations  not 
necessary  for  its  preservation,  merely  because  the  ship 
and  the  rest  of  the  cargo  have  been  made  to  contribute 
to  the  cost  of  a  previous  operation  essential  for  their  own 
preservation. 

With  regard  to  the  initial  operations  which  result 
in  part  of  the  property  at  risk  being  brought  to  a  place 
of  safety,  it  may  well  be  that  if  the  sole,  or  perhaps  the 
predominating,  object  is  the  saving  of  that  particular 
portion  of  the  property,  these  operations  ought  not 
to  be  charged  as  general  average,  though  they  have 
incidentally  benefited  the  other  interests  (o) ;  but  the 
editors  submit  that  there  is  no  justification  in  principle 
for  the  tests  which  Mr.  Lowndes  and  Mr.  Carver  suggest 
for  determining  whether  an  operation  which  furthers 
the  work  of  salving  the  whole  of  the  property  is  or  is 
not  general  average.  Surely  there  is  a  presumption  that 
such  an  operation  was  undertaken  for  the  common 
benefit,  which  is  not  rebutted  by  showing  that  the 
operation  has  conferred  on  the  cargo  an  advantage  far 
exceeding  its  cost  ( p),  or  that  it  was  the  best  thing  that 
could  be  done  for  the  cargo  (r/). 

With  regard  to  the  question  when  the  removal  of 
the  cargo  from  the  ship  and  the  measures  taken  sub- 
sequently to  bring  the  ship  into  safety  can  be  treated  as 
part  of  one  entire  operation,  it  may  be  pointed  out  that 
in  order  to  found  a  claim  for  general  average,  an  opera- 
tion must  be  undertaken  for  the  preservation  of  the  ship 

(o)  See  the  judgment  of  Wills,  J.,       I).  362. 
in  Royal  Mail  Steam  Packet   Co.  v.  {p)  Ante,  p.  185. 

Englid,  Bank  of  Rio  (1887),  19  Q.  B.  (?)  Carver,  §  398,  ante,  p.  201. 


SECT.  XLII.]         COMPLEX  SALVAGE  OPERATIONS. 

and  cargo,  not  for  the  purpose  of  enabling  the  ship  to 
prosecute  the  voyage  (r) ;  and  it  can  only  be  under 
exceptional  circumstances  that,  after  the  cargo  has  been 
removed  from  the  ship,  any  step  taken  for  the  purpose 
of  saving  the  ship  can  be  deemed  necessary  for  the 
safety  of  the  cargo.  In  holding  that  the  landing  of  the 
goods  and  the  salving  of  the  ship  were  parts  of  a  con- 
tinuous operation,  the  court  in  Moran  v.  Jones  were,  to 
some  extent  at  least,  influenced  by  the  fact  that  the 
whole  series  of  operations  was  necessary  to  enable  the 
adventure  to  be  successfully  prosecuted,  a  circumstance 
which,  as  has  just  been  pointed  out,  does  not,  according 
to  English  law,  make  the  operation  as  a  whole  general 
average.  It  is  very  questionable  whether,  on  the  facts 
of  the  case,  the  judgment  in  Moran  v.  Jones  can  be 
supported  (.$). 

Under  modern  conditions,  however,  salvage  opera- 

(r)  Svendsen  v.  Wallace  (1884),  13  a  case  witli  which  ilfom/i  v.  Jo«es  bus 

Q.  B.  D.  69.     See  the  judgments  of  been  supposed  to  conflict,  but  which 

Brett,  M.  R.,  and  Bowen,  L.  S.,  infra,  does  not  seem  to  me,  so  far  as  prin- 

pp.  234,  238.  ciples  are  concerned,  to  be  open  to 

(s)  The  remarks  of  Bovill,  C.  J.,  that  observation.    It  is  the  decisions, 

in  Walthew  v.  Mavrojani  on  Moran  if  anything,  which  are  at  variance, 

V.  Jones  have  abeady  been  set  out ;  not  the  principles  upon  which  they 

and  the  later  comments  on  the  case  are  based."    And  Grantham,  J.,  said, 

may  now  be  noticed.  ihid.,  at  p.  377  :   "  As  that  case  [i.e., 

"  I  take  it  to  be  settled  now,"  said  Moran  v.  Jones)  has  not  been  since 

Wills,  J.,  iu  liotjal  Mail  SteavL  Packet  followed,    even   if    it   has   not   been 

Co.  V.  En(jlisii   Bank  of  Rio  (1887),  overruled,    we   could   not   act   upon 

19Q.  B.  D.  atp.  370,  "that  the  cir-  that  decision  unless  the  facts  were 

cumstances  which  impose  a  liability  absolutely  identical." 
in   the    nature   of    general    average  In  Svendsen  v.  Wallace  (1884),    13 

must  be  such  as  to  imperil  the  safety  Q.  B.  D.  at  p.  80,  Brett,  M.  E.,  said 

of  ship  and  cargo  and   not   merely  that,  in  his  opinion,  Moran  v.  Jones 

such    as    to    impede   the   successful  could    not     be    supported;    Bowen, 

prosecution  of  the  particular  voyage.  L.  J.,  said  (p.  93) :    "  The  inferences 

I  take  it  also  to  be  settled  that  if  the  of  fact  drawn  by  the  Court  of  Queen's 

cargo  as  a  whole  be  landed  and  in  Bench  may  or  may  not  have  been 

safety,  the  expenses  of  getting  the  correct,  but  the  decision  has  refer- 

ship   afloat   incurred   thereafter   are  ence  only  to  the  special  facts  of  the 

not  general  average :  Job  v.  Langton,  case." 


205 


206  EXTRAORDINARY  EXPENDITURE. — PT.  I.   [cHAP  IV. 

tions  are  often  conducted  in  a  manner  which  differentiates 
them  from  the  operations  which  were  usually  undertaken 
when  the  cases  under  discussion  were  decided,  or  even 
when  Mr.  Lowndes  wrote.  Distant  parts  of  the  earth 
are  connected  by  submarine  cables  and  wireless  tele- 
graphy, steamships  have  largely  taken  the  place  of 
sailing  vessels,  and  they  are  in  increasing  numbers  fitted 
with  a  wireless  telegraphic  installation,  which  enables 
them  even  in  uninhabited  places  to  summon  expert 
assistance. 

Moreover,  the  salvage  of  wrecked  vessels  has  now 
become  a  fine  art,  and  it  would  be  difficult  to  apply  the 
tests  formerly  adopted  to  a  modern  case  of  salvage.  Let 
us  take  a  common  case,  viz.,  that  of  a  steamer  running 
ashore.  The  casualty  is  quickly  reported,  and  steamers, 
specially  fitted  with  salvage  appliances,  are  probably 
sent  to  her  assistance  with  all  despatch.  A  careful 
examination  of  the  vessel's  bottom,  and  of  the  nature  of 
the  ground  upon  which  she  is  stranded,  is  made  by 
divers,  and  expert  advice  is  taken  as  to  the  desirability 
of  proceeding  with  the  operations.  The  salvage,  except 
in  extreme  cases,  is  generally  considered  worthy  of 
attempt,  and  probably  the  first  step  that  is  taken  is  to 
discharge  some  cargo  into  craft  for  the  purpose  both  of 
enabling  the  necessary  salvage  machinery  to  be  fitted 
and  to  lessen  the  vessel's  draft.  The  decks  and  bulk- 
heads in  the  hold  where  the  damage  is  found  are 
strengthened  and  made  as  nearly  air-tight  as  possible, 
and  air  is  injected  under  high  pressure  by  means  of  air- 
compressors.  The  water  is  thus  forced  out  of  the  hold, 
and  the  necessary  buoyancy  obtained  to  enable  the 
vessel  to  be  floated.  If  the  operations  are  successful, 
the  vessel  would  then  probably  proceed  into  the  nearest 
convenient  port  for  temporary  repairs,  and  subsequently 


SECT.  XLII.]         COMPLEX  SALVAGE  OPERATIONS.  '2^7 

proceed  to  her  destination  when  sufficiently  seaworthy ; 
in  most  cases  with  a  large  part  of  the  cargo  still  on 
board.  The  portion  of  the  cargo  which  had  been  dis- 
charged while  she  was  aground  would  probably  have 
been  forwarded  in  the  meantime  to  a  place  of  safety  in 
other  bottoms. 

This  represents  a  typical  case  of  salvage  operations 
under  modern  conditions,  and,  provided  that  no  material 
alteration  takes  place  in  the  circumstances  during  their 
progress,  it  would  be  difficult  to  say  that  the  whole 
series  of  operations  ought  not  to  be  treated  as  general 
average.  It  very  seldom  occurs  that  the  cargo,  as  a 
whole,  is  in  a  place  of  safety  at  the  time  when  the  vessel 
is  tinally  floated.  A  portion  may  be,  but  then  its  removal 
was  part  of  a  complete  and  premeditated  scheme  for  the 
rescue  of  the  ship  and  cargo,  and  it  probably  owed  its 
selection  to  its  having  been  fortunate  enough  to  be  stowed 
in  the  upper  part  of  the  ship.  For  these  reasons  it  is 
usually  the  case,  in  practice,  for  the  comj)Iete  cost  of 
complex  salvage  operations  to  be  treated  as  general 
average,  at  any  rate  up  to  the  point  of  time  when  the 
safety  of  all  the  property  at  risk  has  been  attained. 

Other  cases  may  arise,  of  course,  in  which  it  is 
clear  from  the  outset  that  the  salvage  will  be  of  the 
nature  of  a  ''  sauve  qui  peut,''  or  in  which  the  conditions 
will  be  similar  to  those  that  prevailed  in  the  case  of 
Job  V.  Lajigton,  in  which  the  whole  of  the  cargo  was 
discharged  and  in  safety  before  any  attempt  was  made 
to  float  the  empty  vessel,  and  in  such  cases  it  is  obvious 
that  the  same  treatment  of  the  expenses  incurred  will 
not  be  justifiable. 

Apart,  on  the  one  hand,  from  cases  like  the  typical 
one  described,  in  which  the  whole  series  of  operations 
has  l)een  planned  at  tlie  outset  and  undertaken  with  the 


2^^  EXTRAORDINARY  EXPENDITURE. FT.  I.   [CHAP.  IV. 

object  of  saving  both  ship  and  cargo,  and  on  the  other 
from  cases  in  which  it  must  be  taken  tliat  the  purpose  of 
removing  part  of  the  property  at  risk  was  its  own  pre- 
servation and  that  only,  the  rule  to  be  derived  from  the 
legal  authorities  seems  to  be  that  a  line  ought  to  be 
drawn  whenever  there  is  a  distinct  change  in  the  nature 
of  the  operations,  and  that  if  by  means  of  the  operation 
which  has  just  been  finished  part  of  the  property  has 
been  placed  in  safety,  that  part  should  cease  to  contribute 
to  the  cost  of  the  operations  which  follow. 
V"  The  editors  do  not  say  that  this  rule  is  not  open  to 

criticism.  It  seems,  indeed,  impossible,  in  the  case  of 
the  operations  under  discussion,  to  make  an  adjustment 
to  which  no  exception  can  be  taken  on  theoretical 
grounds.  A  rigid  application  of  the  principle  under- 
lying the  rule  is  impracticable ;  for,  as  Mr.  Lowndes 
points  out(z^),  it  would  require  a  separate  adjustment  for 
each  portion  of  tlie  cargo,  however  small,  as  it  is  placed 
in  safety.  Is,  however,  the  impracticability  of  giving 
complete  effect  to  a  principle  a  reason  for  not  giving 
effect  to  it  as  far  as  possible  ?J 
When  vessel  What  remains  to  complete  this  chapter  is  compara- 

voluntarily  ^        _  _       ^ 

stranded  or  tivoly  simple.  We  liavc  been  thus  far  discussing  the 
case  of  a  stranding,  or  a  sinking,  whicli  has  been  the 
result  of  accident  without  fault.  If  this  mishap  had 
been  the  result  of  fault  on  the  part  of  any  servant  of  the 
shipowner,  the  question  would  not  arise  unless  by  the 
contract  of  affreightment  he  was  exempt  from  liability 
for  the  default  of  his  servants,  since  the  entire  expense 
of  saving  both  ship  and  cargo  must  fall  on  the  ship- 
owner. If  the  stranding  or  sinking  was  voluntary, 
and  in  itself  a  general  average  SiGt[ti) — as,  for  example, 
if  the  ship  have  been   run  aground   to  scuttle  her  and 

{t)  Ante,  p.  186.  {tt)  See  ante,  §  36. 


SECT.  XLII.J         COMPLEX  SALVAGE  OPERATIONS.  309 

extinguish  a  fire,  or  to  prevent  her  sinking  in  deep  water, 
or  to  escape  the  pursuit  of  an  enemy, — then  the  cost  of 
floating  or  raising  both  ship  and  cargo,  with  all  the 
incidental  expenses  till  both  are  again  placed  in  a 
condition  to  continue  the  voyage,  must  be  borne  as 
general  average.  Here,  also,  it  is  unnecessary  to  discuss 
whether  the  earlier  and  the  later  stages  are  to  be  treated 
as  one  or  two  operations. 

Returning,  then,  to  the  case  of  an  accidental 
stranding  or  sinking,  it  is  to  be  remembered  that  we 
have  been  speaking  only,  thus  far,  of  the  expenses  of 
removing  the  ship  and  cargo,  from  the  strand  or  bottom, 
to  the  nearest  place  of  actual  safety.  This  very  often  is 
only  the  first  portion  of  the  extraordinary  expenditure 
which  the  accident  has  necessitated.  The  cargo  may  be 
in  safety,  but  on  rocks,  or  on  a  beacli  above  high-water 
mark,  or  on  open  fields  ;  it  is  at  all  events  safe  from  perils 
of  the  seas(w).  It  may  be  of  little  or  no  value,  however, 
in  that  position ;  it  must  be  removed  either  to  a  market  or 
to  a  port  of  shipment  for  its  own  or  some  other  market. 
Here  we  come  upon  a  fresh  set  of  complications.  Wlio 
is  to  bear  the  expense  of  this  removal  from  a  place  of 
bare  actual  or  physical  safety  to  one  of  mercantile  safety? 
Shall  this  be  treated  as  general  average,  as  a  charge  on 
the  specific  cargo  saved,  or  on  the  freight,  or  on  the 
cargo  and  freight  conjointly? 

If  the  discharging  of  the  cargo  is  a  genuine  sacrifice, 
— i.e.^  as  in  our  Thames  case, — it  is  clear  that  the 
removal  from  the  open  fields  (let  us  say)  to  a  proper 
place  is  no   more   than  the    completion   of   the   act    of 

{u)  It  may,  however,  be  necessary      text  would  not  be  considered  a  place 
to  remove  the  cargo  to  another  place      of  safety  :  Rose-  v.  Bank  of  Australia, 
for  shelter,  or  to  be  conditioned.     In      [1894]  A.  C.  687,  infra. 
this  case  the  place  mentioned  in  the 

L.  P 


210 


EXTRAORDINARY  EXPENDITURE. PT.  I.   [cHAP.  IV. 

discharge,  and  must  form  part  of  the  general  average  : 
and  equally  so  if  the  discharging  is  the  result  of  some 
antecedent  sacrifice,  as  in  the  case  of  a  voluntary- 
stranding.  But,  supposing  that  we  are  right  in  accepting 
Mr.  Carver's  rule,  or  some  such  rule,  for  the  treatment  of 
these  salvage  expenses,  and  that  the  case  before  us  is 
one  that  on  that  rule  must  be  treated  as  specific  or  sauve 
qui  pent,  then  it  must  follow  that,  in  this  case,  not  only 
the  cost  of  first  saving  this  property,  but  also  the  cost  of 
removing  it  from  the  place  where  it  was  first  deposited  to 
a  place  of  sale  or  shipment,  must  be  a  specific  charge  on 
that  property. 

But  there  is  this  peculiarity  about  goods  in  transitu, 
that  besides  belonging  to  their  owners  they  may  in  a 
qualified  sense  be  said  to  belong  to  the  shipowner,  in 
respect  of  the  rights  he  has  over  them  for  securing  his 
freight. 

When  the  goods  have  been  brought  into  physical 
safety,  the  ship  being  still  stranded  or  sunk,  and  her  fate 
yet  uncertain,  the  shipowner's  lien  on  them  for  freight  is 
by  English  law  not  necessarily  done  away  with,  but  in  a 
sort  of  suspended  or  torpid  condition.  He  is  entitled  to 
hold  to  the  goods  for  a  reasonable  time,  to  see  whether 
he  can  get  the  ship  afloat  or  raise  her,  repair  her,  and 
make  her  fit  to  take  the  goods  abroad  and  earn  his 
freight ;  or  whether,  if  this  cannot  be  done,  he  can  earn 
his  freight  in  another  way,  e.g.,  by  carrying  the  goods 
to  their  destination  in  another  vessel  provided  by  himself 
as  a  substitute  for  the  original  ship(y). 

Supposing  that  the  shipowner  is  able  to  float  and 
repair  his  own  ship,  within  a  reasonable  time,  and  has 
brought  her  to  the  loading  port  nearest  to  the  rocks, 
sands,  or  other  place  where  the  goods  thus  saved  were 

iy)  Shipton  v.  Thornton  (183S),  9  A.  &  E.  314. 


SECT.  XLII.J         COMPLEX  SALVAGE  OPERATIONS.  ■-*  1  i 

deposited,  and  there  lies  ready  to  take  the  goods  on 
board — Who  is  to  bear  the  expense  of  bringing  the 
goods  to  the  ship  ? 

We  are  supposing,  it  must  be  remembered,  that 
there  is  in  the  case  before  us  no  question  of  general 
average.  The  cargo  was  taken  out  of  the  ship  for  its 
own  safety.  Theoretically,  on  Mr.  Carver's  principle, 
the  expense  of  taking  it  out  should  be  charged  to  the 
cargo  and  freight  on  it  conjointly :  the  ship  and  freight 
conjointly  (x)  are  made  to  bear  the  expenses  of  floating 
and  lifting  the  ship :  the  ship  alone  bears  the  expenses 
of  repairing.  If  the  cargo  first  saved,  instead  of  being 
deposited  on  sands  or  fields  where  it  was  of  no  value, 
had  been  carried  at  once  to  the  port  where  the  ship 
would  have  been  ready  to  take  it  in,  as  is  sometimes 
done,  the  whole  cost  of  carrying  it  thither  would  have 
been  treated  as  the  cost  of  saving  the  cargo,  and  should 
accordingly,  on  the  above  theory,  have  been  a  charge 
on  the  cargo  and  freight  conjointly. 

On  these  facts,  it  is  conceived  that  the  cargo  and 
freight  conjointly  should  bear  the  expense  of  bringing 
this  cargo  to  the  place  where  the  repaired  ship  is  lying, 
or  will  come  to  lie,  ready  to  receive  it.  It  is  an  extra- 
ordinary expense  resulting  from  an  accident  affecting 
the  cargo :  it  is  in  fact  a  part  of  the  operation  of  saving 
the  cargo,  for  where  the  cargo  was  first  placed  it  was 
not  properly  to  be  called  in  safety,  being  exposed  to 
pillage  and  many  other  dangers,  and  of  no  value.  In 
confirmation  of  this  view,  may  be  cited  the  opinion  of 
M.  Smith,  J.,  above  cited,  to  the  effect  that  the  saving 

(a;)  The  conjunction  of  the  freight  is  clearly  established  by  Lord  Camp- 
to   the   ship  or  goods,  according  as  bell's  judgment  in  Moran  v.  Jones, 
the   saving    of    ship   or    goods    may  ante,  p.  192. 
carry  with  it  the  saving  of  the  freight, 

p2 


21:> 


EXTRAORDINARY  EXPENDITURE. — PT.  I.   fCHAP.  IV. 


Case  where 
freiffht  earned 


of  cargo  from  a  desolate  island  where  it  would  be  of  no 
value  must  be  treated  as  equivalent  to  the  saving  of  it 
from  total  loss(?/). 

The  cost  of  loading  the  cargo  on  board  the  ship, 
however,  in  such  a  case,  always  is,  in  practice,  a  charge 
upon  the  freight  (s). 

Supposing,  in  the  second  place,  that  the  ship  is  not 
by  substituted  floated  or  raised,  or  is  found  not  capable  of  repair  so  as 
to  carry  the  cargo,  and  the  shipowner  avails  himself  of 
his  privilege  of  substituting  another  ship,  and  sends  it  to 
the  nearest  port  to  fetch  the  goods,  it  seems  obvious  that 
the  same  principle  should  apply :  the  cost  of  bringing 
the  goods  to  the  j^oi't  should  be  a  charge  on  the  cargo 
and  freight,  and  the  cost  of  loading  the  goods  should  be 
a  charge  on  the  freight  alone  (a). 


{y)  Per  M.  Smith,  J,,  in  Wulthew 
V.  Mavrojani  (1850),  L.  E.  5  Exch.. 
116;  ante,  p.  198. 

(z)  Whether  this  is  right  in  theory, 
I  do  not  here  discuss.  The  question 
is,  no  doubt,  closely  connected  with 
that  considered  in  Svendsen  v.  Wal- 
lace (see  jwst,  Chap.  V.),  where  the 
cargo  has  been  landed  for  the  common 
safety :  but  here,  where  the  cargo 
has  been  taken  out  for  its  own  safety 
merely,  it  is  certainly  not  a  matter 
of  course  that  the  conclusion  would 
be  the  same  as  in  that  decision.  The 
present  practice,  however,  unques- 
tionably is  to  treat  the  cost  of  re- 
loading as  a  charge  on  freight. 

(a)  The  question  which  has  just 
been  considered  was  raised  in  Rose  v. 
Batik  of  Australia,  [1894]  A.  C.  687; 
but  under  the  cii'cumstances  of  the 
case  it  was  unnecessary  in  the  House 
of  Lords  to  decide  it.  The  Sir  Walter 
Raleigh,  with  a  cargo  of  wool,  went 
ashore  at  Audresselles,  near  Bou- 
logne. The  cargo  was  landed  and 
carried  to  the  top  of  the  cHff ,  whence, 
after  remaining  for  a  time  in  an  open 


field,    it  was   conveyed  by    cart    to 
Boulogne.      Much  of   it   had    been 
damaged     by     sea    water,    and     at 
Boulogne  steps  were  taken  to  save  it 
from  deterioration.     After  the  cargo 
had  been  landed  (exactly  when  is  not 
stated)  the  attempts  to  get  the  ship 
off  the  ground  were  abandoned  ;  and 
after  the  cargo  had  been  brought  to 
Boulogne  the  shipowner  elected  to 
forward  it  to  its  destination  in  order 
to  earn  the   freight.     The  Coui-t  of 
Ajjpeal  held  that  after  the  cargo  had 
been  placed  in  the  field  the  expense 
of  removing  it  to  Boulogne  must  be 
charged  to  the  freight ;  but  this  de- 
cision was  reversed  in  the  House  of 
Lords.     ' '  It  seems  to  me,"  said  Lord 
Herschell,  L.  C,    "  that  when  once 
the  conclusion  of  fact  which  I  have 
stated  is  arrived  at,  that  the  cargo 
was  not  safe  where  it  was  at  Audres- 
selles, and  that  if  the  safety  of  the 
cargo  alone  be  regarded  it  ought  to 
have  been  taken  to  Boulogne,  it  is 
impossible   to   say  that   this  can  be 
treated  as  an  expenditure  on  account 
of  freight."     He  then  dealt  with  the- 


SECT.  XLIII.l 


DERELICT. 


•213 


[When  the  ship  has  gone  ashore,  or  some  other 
maritime  disaster  has  happened  which  imperils  the  whole 
adventure,  the  shipowner  is  bomid  to  use  his  best 
endeavours  in  the  interest  of  all  parties  concerned. 
There  is,  however,  no  rigid  rule  of  law  that  he  is  bound 
to  do  everything  himself ;  and  in  a  proper  case  he  may 
employ  experienced  persons  to  act  for  the  benefit  of  all 
parties,  and  charge  their  remuneration  as  a  general 
average  expenditure  (^).] 


8  43.  It  must  be  borne  in  mind,  however,  that  the  ship  left 

<J  ^  ,  derelict. 

shipowner's  position  as  to  freight  may  be  materially 
affected  by  the  crew's  abandoning  the  ship  during  the 
voyage ;  as,  for  instance,  by  their  taking  to  the  boats,  or 
otherwise  leaving  the  ship  to  save  their  lives.  In  the 
case  of  The  Kathleen^  this  ship,  laden  with  a  cargo  of 
cotton  bound  for  Bremen,  was  run  into,  in  the  English 
Channel  off  Hastings,  by  a  vessel  called  The  Mallowdale, 
which  cut  her  down  and  did  great  damage  to  her.  For 
this  collision  The  Mallotvdale  was  solely  to  blame.  Next 
morning  the  master  and  crew  of  The  Kathleen  justifiably 
abandoned  her,  she  having  become  unmanageable,  and 
they  went  on  board   The  Mallowdale.     Subsequently  The 


argument  that  wlieu  the  expenditure 
was  inciuTed,  the  shipowner  had 
elected  to  carry  the  cargo  on,  and 
therefore  incurred  it  on  account  of 
his  freight,  although  incidentally  it 
benefited  the  cai'go.  There  had  been 
no  such  act  of  election,  said  his 
lordship ;  and  after  repeating  that 
under  the  circumstances  the  expen- 
diture could  not  be  charged  against 
the  freight,  be  concluded:  "It  is 
not  necessary  to  say  whether  it  is 
to  be  treated  as  a  general  average 
charge,  or  whether  it  is  to  be  treated 
as  a  charge  against  cargo  and  freight. 
One  or  other  of  those  views,  according 


to  my  judgment,  must  be  the  correct 
one,  and  it  is  not  essential  to  deter- 
mine which." 

{h)  Rose  V.  Bank  of  Australia,  [1894] 
A.  C.  687,  disapproving  Schuster  v. 
jP^eicAer  (1878),  3Q.  B.  D.  418.  The 
House  of  Lords  also  held  that  he  was 
entitled  to  charge  against  the  cargo- 
owners  the  commission  paid  to  a 
merchant  for  arranging  the  sale  of 
unidentified  portions  of  the  cargo ; 
and  Lord  Herschell  considered 
(p.  697)  that  there  might  be  circum- 
stances under  which  he  might  even 
charge  for  his  own  services. 


21-1  EXTRAORDINARY  EXPENDITURE. PT.  I.   [cHAP.  IV. 

Kathleen  was  boarded  by  salvors,  and  taken  into  Dover^ 
where  the  ship  and  cargo  were  arrested  under  Admiralty 
process  for  salvage.  Thereupon  the  owners  of  the  cargo 
applied  for  an  order  of  the  court  to  have  the  cargo,  which 
was  alleged  to  be  deteriorating  in  value,  sold  on  the 
spot.  The  owners  of  the  ship  objected  to  this  course, 
and  claimed  to  set  aside  this  application,  asking  the 
court,  on  the  contrary,  either  to  order  that  the  owners  of 
The  Kathleen  should  be  allowed,  on  giving  bail  in  the 
salvage  suits  for  the  cargo,  to  carry  the  cargo  on  to 
its  destination  in  order  to  earn  freight,  or  to  order 
that,  if  the  cargo  were  sold  at  Dover,  the  amount  of 
freight  should  be  paid  out  of  the  proceeds.  The  court 
first  ordered  the  removal  of  the  cargo  to  London  for  sale, 
this  being  the  best  course  in  the  interest  of  the  cargo 
itself,  it  being  too  badly  damaged  to  bear  the  delays  of 
a  voyage  to  Bremen.  As  to  the  claim  for  freight. 
Sir  R.  Philliniore  decided  that  there  was  none.  "  The 
owner,"  said  the  learned  judge,  "  had  abandoned  all 
possession  of  the  ship,  and  at  the  time  of  abandonment 
had  certainly  lost  all  rights  to  freight  or  to  carry  on  the 
cargo  "  (c). 

In  the  case  of  The  Cito,  a  Norwegian  ship,  the  decision 
was  much  to  the  same  effect.  This  vessel,  with  a  cargo 
of  resin  in  barrels,  bound  to  Rotterdam,  was,  owing  to 
the  perils  of  the  sea,  abandoned  by  her  crew  off  the 
American  coast,  picked  up  by  salvors,  carried  into 
Plymouth,  and  there  arrested  by  the  salvors.  The 
owners  of  the  cargo,  as  in  The  Kathleen's  Case,  claimed 
the  right  to  settle  with  the  salvors,  and  take  delivery  of 
their  cargo  without  payment  of  freight.  This  the  ship- 
owners resisted,  and  the  question  between  them  was 
carried  to  the  Court  of  Admiralty.  That  court  con- 
sidered itself  bound  by  the  precedent  of  The  Kathleen, 

(c)  The  Kathleen  (1874),  L.  E.  4  A.  &  E.  269,  at  p.  277. 


SECT.  XLIII.J  DERELICT. 

and  gave  judgment  in  favour  of  the  cargo.  This  was 
appealed  against,  but  the  Court  of  Appeal  confirmed  the 
judgment. 

Brett,  L.  J.,  said:  "  Many  interesting-  points  have  been  discussed 
in  this  case  about  which  it  is  not  necessary  to  give  any  decided 
opinion.  It  has  been  said  that  such  an  abandonment  of  a  ship  as  to 
make  it  a  derelict,  together  with  a  subsequent  seizure  by  any  one 
who  finds  it,  makes  such  seizure  the  seizure  of  a  droit  of  the  Admi- 
ralty, and  alters  the  property  in  the  ship.  If  that  were  made  out, 
it  would  strongly  support  the  case  for  the  respondents;  but  I  am 
not,  however,  prepared  to  say  that  such  a  proceeding  would  take 
the  property  in  the  ship  out  of  the  owner;  and  for  the  present  pur- 
pose I  will  assume  that  it  does  not.  It  has  been  also  urged  that 
the  abandonment  of  a  ship  puts  an  end  to  the  contract  of  affreight- 
ment. I  am  not  prepared  to  say  it  does.  Suppose  a  wrongful 
abandonment,  without  its  being-  occasioned  by  the  perils  of  the 
sea,  it  is  clear  that  in  that  case  the  owner  of  the  cargo  might  sue 
the  shipowner  for  his  breach  of  contract,  so  it  cannot  be  said  that  it 
puts  an  end  to  the  contract  of  affreightment.  It  is  sufficient,  I 
think,  for  the  determination  of  the  present  case,  to  say  that  by 
the  abandonment  of  a  ship  without  any  intention  to  retake  posses- 
sion of  it,  the  shipowner  has,  so  far  as  he  can,  abandoned  the  con- 
tract, so  as  to  allow  the  other  party  to  it,  the  cargo-owner,  to  treat 
it  as  abandoned." 

The  learned  judge  proceeded  to  point  out  that,  before  the  owners 
of  The  Cito  had  taken  any  action,  and  while,  therefore,  the  cargo- 
owners  were  entitled  to  treat  the  contract  as  abandoned,  these 
cargo-owners  had  demanded  possession  of  their  own  property,  ex- 
pressing their  readiness  to  satisfy  the  salvors'  lien.  "We  do  not 
decide,"  he  added,  "  what  would  have  been  the  result  if,  after  the 
ship  had  been  brought  in  as  it  was  by  the  salvors,  and  before  the 
cargo-owners  had  come  in  and  exercised  their  right  to  the  cargo, 
the  shipowners  had  given  bail  for  the  ship  and  cargo,  and  had 
carried  the  cargo  on"  {d). 

Cotton  and  Liiidley,  LL.  J-,  concurred. 


(d)   The  Cito  (1881),  7  P.  D.  5,  at       Ins.    I'u.    (1902),    7    Com.    Cas.    130 
p.  8.     See  also   The  Arno  (1895),  8       (C.  A.). 
Asp.  M.  C.  5  ;   Guthrie  v.  North  China 


215 


216 


CHAPTER  V. 

EXTRAOEDINARY  EXPENDITURE. PART  II. 


Port  of  refuge  expenses. 
Div.  I. — Principle. 

SECT.  PAGE 

44.  Statement  of  the  general  question 216 

45.  Former  state  of  practice  in  this  country,  and  earlier  decisions  218 

46.  Atwood  V.  Sellar  in  Queen'' s  Bench 220 

47.  Same  case  iji  Court  of  Appeal 225 

48.  Svendsen  v.  Wallace    230 

Question  as  to  custom 230 

principle — Court  of  Appeal    234 

House  of  Lords 244 

49.  Conclusion  :  effect  of  these  two  decisions 249 

Div.  II. — Application  to  details. 

50.  Mixed  cases  :    bearing  up  partly  for  sacrifice,  partly  for 

accidental  damage ....      255 

51.  At  ivhat  point  safety  is  attained 257 

52.  Discharging  cargo 259 

53.  Re-loading  charges,  when  freight  is  prepaid    261 

54.  Admitted  cases  tvhere  cost  of  re-loading  is  general  cargo    .  .  262 

55.  Substituted  expenses    262 

56.  Effect  of  condemnation 272 

57.  Wages  and  keep  of  creiv    279 


Statement  of    §  44.  Next  to   Salvage  charges,  or  the  expenditure  in- 

the  general  ,     .  •  ,  .  -.  p  ,  .    . 

question.  curreo.  Ill  saviiig  a  ship  and  cargo  irom  wreck,  raising 
them  when  sunk,  floating  them  when  stranded,  or  other- 
wise rescuing  them  from  imminent  total  loss — if  not  even 
before  these  in   importance,  on  account  of  its  greater 


SECT.  XLIV.J  THE  GENERAL  QUESTION.  ^^7 

frequency — comes  the  expenditure  incurred  by  entering 
a  port  of  refuge  to  repair  damage.  Tliis  step  on  the 
part  of  the  master  is  always  one  of  grave  responsibility. 
If  taken  without  sufficient  justification,  it  exposes  his 
employer  to  the  heavy  penalties  of  deviation;  cancelling 
from  that  point  all  insurances,  and  throwing  on  the  ship- 
owner alone  the  entire  future  risk  of  the  voyage  both  as 
to  ship  and  cargo  (a).  On  the  other  hand,  there  are  occa- 
sions on  which  the  safety  of  the  ship  and  cargo,  and  the 
lives  of  all  on  board,  may  make  it  imperative  on  the 
master  to  take  this  step.  When  resolved  on,  it  is  a  mea- 
sure involving  sacrifice — the  sacrifice  of  so  much  time 
and  money.  At  first  sight,  therefore,  it  would  seem  that 
the  act  of  putting  into  a  port  of  refuge,  if  justifiable, 
must  fall  within  the  definition  of  an  act  of  general 
average. 

Can  it  be  said,  however,  that  when  the  ship  has  been 
damaged  by  an  accident,  so  as  to  have  been  rendered 
unseaworthy,  it  immediately  becomes  the  duty  of  the 
shipowner  to  take  measures,  at  his  own  expense,  to 
restore  her  to  that  seaworthy  condition  which  he  has 
guaranteed  for  her?  If  so,  can  it  be  said  that  the 
master's  act  in  bearing  up  for  the  nearest  place  where 
the  ship  can  be  repaired  is  no  more  than  his  duty  under 
this  implied  warranty  of  seaworthiness  ? 

Or,  if  neither  of  these  views  can  be  accepted,  each 
being  regarded  as  extreme  on  one  side  or  the  other, 
ought  some  intermediate   course  to   be   taken ;    as,    for 


{a)    The    effect   of  a  deviation   is  Jo//y  (1890),  6  Times  L.  R.  345(0.  A.); 

even   greater.      A   series    of   recent  Joseph  Tlwrlcy,  Ld.v.  Orcliis  S.S.  Co., 

cases  has  established  the  rule  that  [1907]   1  K.  B.   660  (0.  A.);  Inter- 

the  deviation  goes  to  the  root  of  the  nationale    Giunio  e?t  Superphospliaat- 

contract,  so  that  the  shipowner  can-  werken  v.  Macandrew,  [1909]  2  K.  B. 

not  avail  himself  of  any  of  its  stipu-  360;  Kish  v.  Taylor,  [1911]  1   K.  B. 

lations  in  his  favour.     (See  BuUan  v.  626  (C.  A.). 


218 


PORT  OF  REFUGE  EXPENSES. 


[chap.  v. 


instance,  by  laying  clown  the  rule,  that  the  expense  of 
going  into  the  port  of  refuge,  and  thereby  rescuing  the 
ship  and  cargo  from  the  condition  of  danger  to  which 
they  were  exposed  while  on  board  a  damaged  and  unsea- 
worthy  ship,  should  be  treated  as  general  average;  while 
the  subsequent  expense,  during  the  stay  in  port  to  repair 
the  damage,  and  the  cost  of  re-loading  the  cargo  and 
putting  to  sea  again,  should  fall  on  the  shipowner  or  his 
underwriters  on  ship  and  freight  ? 

This  question  has  given  rise  to  a  controversy  suf- 
ficiently important  and  instructive  to  be  here  set  forth  at 
some  length. 


Former  state 
of  practice  iu 
this  country, 
and  early 
decisions. 


§  45.  The  state  of  things,  at  the  time  when  the 
question  was  first  seriously  brought  before  the  courts, 
was  as  follows  : — 

In  most  countries  except  Great  Britain  the  entire 
expense  incurred  by  putting  into  a  port  to  repair  was, 
and  is,  treated  as  general  average  :  that  is  to  say,  the 
pilotage  and  port-charges  going  into  the  port  and  coming 
out;  the  cost  of  discharging  the  cargo,  whether  for  its 
own  safety  or  that  of  the  ship,  or  both,  e.g.,  if  the  ship 
were  leaky  and  the  cargo  damaged  ;  or  to  repair  the  ship, 
e.g..,  to  lighten  her  and  enable  her  to  enter  a  dry  dock; 
the  warehouse-rent  of  the  cargo  so  discharged,  and  the 
cost  of  re-loading  it.  On  the  other  hand,  the  cost  of 
repairing  the  ship  at  the  port  of  refuge  was  not  so 
treated.  This  was  dealt  with  in  the  same  way  as  if  the 
repair  had  been  deferred  until  the  ship  reached  her 
destination  ;  that  is,  as  general  average  if  the  damage 
were  occasioned  by  a  sacrifice  for  the  common  safety, 
but  not  otherwise.  This  item  was  not  treated  as  a  part 
of  the  sacrifice  involved  in  bearing  up  for  the  port  of 
refuge,  since  the  ship  must  have  been  repaired  sooner  or 


SECT.  XLV.]       FOKMEK  PRACTICE  AND  DECISIONS.  '^^^ 

later.  With  some  unimportant  exceptions,  which  are 
pointed  out  in  tlie  Appendix,  this  may  be  said  to  have 
been  the  universal  rule  over  tlie  Continent  and  in  North 
and  South  America. 

In  England,  for  a  long  period,  as  may  be  gathered 
from  the  older  writers,  such  as  Beawes  and  Magens,  the 
same  rule  prevailed  in  practice.  But  about  the  time  of 
Stevens,  or  it  may  be  some  hundred  and  fifteen  years  ago, 
a  practice  somehow  grew  up  amongst  English  adjusters, 
which  amounted  to  this,  that  so  much  only  of  the  expense 
of  putting  into  port  to  repair  should  be  treated  as  general 
average  as  was  incurred  up  to  the  time  when  the  ship 
and  cargo  were  placed  out  of  danger.  That  is  to  say, 
the  pilotage  and  port  charges  incurred  in  going  into 
the  port  of  refuge,  and  the  expense  of  discharging  the 
cargo,  whether  for  safety  or  to  repair  the  ship,  were 
treated  as  general  average  ;  but  all  subsequent  expenses 
were  allotted  to  the  particular  interests  immediately 
concerned, — the  warehouse  rent  of  the  cargo  was  made 
a  specific  charge  on  the  cargo,  and  the  expenses  of 
setting  forth  again  on  the  voyage,  e.(/.,  the  cost  of 
re-loading  the  cargo,  and  the  outward  pilotage  and  port 
charges,  were  treated  as  a  specific  charge  on  freight  ((^). 

This  treatment  was  applied  indiscriminately  to  all 
cases  of  putting  into  a  port  of  refuge,  no  matter  whether 
the  damage  to  the  ship  which  occasioned  the  putting  in 
had  been  the  result  of  an  accident,  or  of  a  sacrifice  for 
the  common  safety,  such  as  the  cutting  away  of  a  mast. 
In  the  latter  case,  indeed,  the  result  was  paradoxical 
enough,  for  if  the  sacrifice  of  the  mast  necessitated  the 
going  into  port  and  discharging  cargo,  it  no  less  neces- 
sitated the  re-loading  and  coming  out  again  when  the 

(b)  The   feeble   beginning   of  this      earlier  editions  of  Stevens  on  Average, 
practice  may  be  seen  in  some  of  the      and  in  Benecke. 


220 


PORT  OF  REFUGE  EXPENSES. 


I  CHAP.  V. 


mast  had  been  replaced.  All  alike  were  the  natural 
consequences  of  the  sacrifice. 

[The  uniformity  of  treatment  in  all  these  cases  derives 
some  support  from  Lord  Ellenborough's  judgment  in 
Plummer  v.  W?'ld?nan  (c),  though,  as  the  court  seems  to 
have  held  in  that  case  that  the  expense  of  warehousing 
and  re-loading  the  goods  was  general  average,  the 
decision  does  not  in  this  respect  agree  with  the  practice 
referred  to  {d).l 

Eventually,  the  practice,  after  holding  its  ground  for 
almost  a  century,  was  assailed,  and  has  been  partially 
modified,  as  will  appear  from  the  following  decisions : — 


Aluood  V. 
Sella  r. 


§  46.  The  ship  Sullivan  Smvin  (e),  on  a  voyage,  in 
the  year  1877,  from  Savannah  for  Liverpool,  met  with  a 
gale,  in  which,  for  the  general  safety,  the  master  was 
compelled  to  cut  away  her  foretopmast,  and  this  in  its 
fall  did  such  damage  to  her  hull  that  the  master  was 
obliged  to  put  into  Charleston  to  repair  it,  for  which 
purpose  he  had  to  discharge  a  portion  of  the  cargo  and 
to  place  it  in  a  warehouse.  After  repairing,  this  cargo 
was  re-laden,  and  the  vessel  then  completed  her  voyage 
to  Liverpool.  The  case  (which  was  an  agreed  case 
settled  by  an  arbitrator)  then  set  forth  the  practice  of 
adjusters,  which,  it  was  stated,    had  been  for  the  last 


(c)  (1815),  3  M.  &  S.  4S2. 

{d)  Lord  Tenterden  (Abbott  on 
Shipping,  otb  edit.  p.  847)  and 
Arnould  (Ins.  2nd  edit.  vol.  2,  p.  920) 
also  lay  down  the  rule  that,  even 
when  the  ship  has  put  into  port  to 
repair  particular  average  damage,  the 
warehousing  and  re-loading  charges 
are  general  average.  Benecke,  on 
the  other  hand  (p.  192),  distinguishes 
between  putting  into  port  to  repair 


general  average  and  particular  aver- 
age damage.  In  the  former  case  he 
considers  that  all  expenses  should  be 
allowed  in  general  average ;  in  the 
latter  that  the  cause  for  general  con- 
tribution ceases  as  soon  as  the  object 
of  putting  the  vessel  and  her  cargo 
in  safety  is  accomplished. 

(e)  Atwood     V.     Sellar    (1879),    4 
Q.  B.  D.  342. 


SECT.  XLVI.]  ATWOOD  V.  SELLAR.  221 

seventy  or  eighty  years,  and  then  was,  in  all  such  cases, 
whether  the  putting  in  were,  as  in  that  case,  the  result 
of  a  sacrifice,  or  of  a  mere  accident,  to  allow  in  general 
average  the  expense  of  going  into  port  and  discharging 
the  cargo,  but  to  treat  the  warehouse-rent  as  a  special 
charge  on  the  cargo,  and  the  re-loading,  together  with 
the  outward  port-charges,  as  a  special  charge  on  the 
freight,  "  Average  adjusters,"  it  was  added,  "  regulate 
their  rules  of  jjractice  in  accordance  with  what  they  con- 
sider are  the  legal  principles  applicable  to  the  subject. 
There  is  an  association  of  average  adjusters  which  holds 
meetings  from  time  to  time,  at  which  the  rules  of  prac- 
tice are  discussed  and  altered  or  modified  with  reference 
to  legal  decisions." 

The  plaintiffs  in  this  case  claimed  that  the  whole  of 
the  expenses  above  enumerated  should  be  treated  as 
general  average.  The  defendants  contended  that  they 
were  only  liable  to  pay  in  conformity  with  the  practice. 

At  the  first  trial,  in  the  Queen's  Bench  Division,  judg-  lu  Queen's 
ment  was  given,  by  a  majority  of  the  court,  in  favour  of 
the  plaintiffs  (/).     Manisty,  J.,  who  was  in  the  minority, 
rested  his  conclusion  on  the  following-  ffrounds  :  — 

"  I  am  of  opinion,"  said  the  learned  judge,  "  that  in  the  absence  Munisiy,  J. 
of  any  evidence  to  the  contrary,  the  usage  and  practice  of  average 
adjusters  for  so  great  a  length  of  time  must  be  deemed  and  taken 
to  have  existed  from  all  time,  and  to  have  been  acquiesced  in,  and 
so  to  have  become  the  usage  and  practice  of  shippers  and  ship- 
owners "  {g).  "I  am  at  a  loss  to  comprehend,"  the  learned  judge 
continued,  "how  the  law  of  any  particular  nation  as  to  general 
average,  can  be  arrived  at  except  by  ascertaining  what  has  been, 
as  a  matter  of  fact,  the  usage  and  practice  of  such  particular  nation 
with  regard  to  it."  In  confirmation  of  this,  the  learned  judge  cited 
a  passage  from  the  judgment  of  Abbott,  C.  J.,  in  Simonds  v.  White, 
when,  after  laying  down  that  the  proper  place  for    adjusting    a 

(/)  Atwood  v.  Sellar  (1879),  4  Q.  B.  D.  342. 
{(j)  lb.  at  p.  ;H9. 


-'-=^-  PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

general  average  was  the  port  of  destination,  the  learned  Chief 
Justice  went  on  to  say  that,  as  a  consequence  of  this  rule,  the 
average  should  be  adjusted  "according  to  the  usage  and  law"  of 
that  place  (/i);  secondly,  Manisty,  J.,  considered  that  the  decision, 
or  at  least  some  expressions  used  by  Bovill,  C.  J.,  in  Walthew  v. 
Mavrojani  (i),  were  very  pertinent  to  the  present  case.  Lastly,  the 
learned  judge  could  draw  no  distinction  in  point  of  principle  be- 
tween the  present  case  and  that  in  which  the  first  cause  of  putting 
into  port  was  an  accidental  damage  suffered  by  the  ship.  "I  think 
it  much  safer,"  he  concluded,  "  to  adhere  to  a  usage  which  has  been 
acted  upon,  for  aught  that  appears  to  the  contrary,  ever  since 
England  adopted  the  law  of  general  average,  than  to  introduce  a 
new  usage  for  no  other  reason,  that  I  can  perceive,  than  that  such 
new  usage  would  be  more  consonant  with  strictly  logical  principles. 
Such  an  alteration  ought,  in  my  opinion,  to  be  effected,  if  at  all, 
by  legislation,  and  not  by  a  decision  of  a  court  of  law"  (k). 
Coekbnrn,  C.J.  Cockburn,  C.  J.  (with  whom  Mellor,  J.,  concurred),  was  of  a 

different  opinion.  He  began  by  considering  what,  independently 
of  the  practice  of  average  adjusters,  is  the  principle  or  rule  of  law 
applicable  to  this  case.  That  the  expenses  in  question — those  of 
quitting  the  port,  and  of  warehousing  and  re-shipping  the  cargo — 
"  should,  according  to  legal  principles,  be  made  the  subject  of  general 
average,  appears  to  me,"  said  his  lordship,  "  to  flow  necessarily  from 
the  fundamental  principle  on  which  the  whole  doctrine  of  general 
average  rests;  namely,  that  all  loss  which  arises  from  extraordinary 
sacrifices  made,  or  expenses  incurred,  for  the  preservation  of  the  ship 
and  cargo,  must  be  borne  proportionably  by  all  who  are  interested. 

"  The  contract  between  the  goods-owner  and  the  shipowner,  on  a 
charter-party  or  a  bill  of  lading,  being  for  the  conveyance  of  the 
goods  to  a  given  port,  there  occurs  in  the  course  of  the  voyage  a 
state  of  things  which  is  not  provided  for  in  the  contract.  A  storm 
arises;  the  vessel  is  in  danger;  but  a  port  is  within  reach,  in  which, 
in  the  common  interest  of  all  concerned,  it  would  be  prudent  to 
take  refuge.  Or  it  becomes  necessary  to  cut  away  a  mast,  and,  as 
the  consequence  of  so  doing,  to  seek  an  intermediate  port  in  order 
to  replace  it.  Or  the  ship  sustains  damage  from  the  violence  of 
■winds  or  waves  which  renders  it  necessary,  for  the  common  safety 


{h)  Simonds    v.     White   (1824),    2  (i)  (1870),    L.    E.    5    Exch.    IKi; 

B.  &  C.  805;    cited  4  Q.  B.  D.  at      cited  4  Q.  B.  D.  at  p.  351. 
p.  34t).  (/■■)  lb.  at  p.  352. 


SECT.  XLVI.]  ATVVOOD  V.  SELLAR.  -~^' 

of  ship  and  cargo,  and  for  the  further  prosecution  of  the  adventure, 

to  seek  a  port  at  which  repairs  which  have  become  necessary  for 

the  safe  prosecution  of  the  voyaj^e  may  be  effected.     The  result  Theory,  that 

^  ^    o  'A  new 

is  that,  in  theory  at  least,  a  new  arrangement  not  contemplated  or  arrangement 

provided  for  by  the  original  contract  takes  place  between  the  parties,  p^atgj^^f^^jj'g 

who  in  theory,  as  formerly  in  fact,  must  be  supposed  to  be  present,   bill  of  lading, 

11,1  i         J.      i**  entered  into 

each  in  the  practice  or  modern  times  represented  by  the  master,  to  (,„  the  spot, 
whom  the  interests  of  both  are  committed.  If  we  could  suppose  both 
parties  to  be  actually  present,  and  under  a  sense  of  imminent  danger 
to  concur  in  the  necessity  of  seeking  a  port  of  refuge,  but  to  be 
discussing  the  question  as  to  how  the  expenses  incidental  to  such  a 
course  should  be  borne,  what  arrangement  could  be  more  reasonable 
or  just  than  that  these  expenses,  being  extraordinary  expenses  in- 
curred for  the  common  benefit,  should  be  borne  in  common,  on  the 
same  principle  as  that  which  has  been  established  from  the  earliest 
times  in  the  case  of  actual  jettison? 

"  Applying  this  principle  with  reference,  in  the  first  place,  to  the 
expenses  incurred  by  the  ship,  it  is  admitted  on  all  hands  that  the 
expenses  of  entering  the  port  of  refuge  should  be  carried  to  general 
average.  Logically,  it  would  seem  to  follow  that,  as  the  coming  out 
of  port  is — at  least  where  the  common  adventure  is  intended  to  be, 
and  is,  further  prosecuted — the  necessary  consequence  of  going  in, 
the  expenses  incidental  to  the  later  stage  of  the  proceeding  should 
stand  on  the  same  footing  as  the  former.  The  further  prosecution 
of  the  voyage  was  in  the  contemplation  of  the  parties,  or  of  the 
master  as  representing  them,  in  going  in;  the  coming  out,  therefore, 
as  essential  to  the  further  prosecution  of  the  voyage,  must  equally 
have  been  in  view  when  the  resolution  to  go  in  was  formed"  (J). 

Up  to  this  point  the  true  position  of  the  question 
is  most  admirably  set  forth ;  but  unfortunately  the 
learned  Chief  Justice  does  not  seem  to  have  been  equally 
successful  in  grappling  with  some  of  the  difficulties 
which  liad  been  presented  to  him  in  argument.  To  an 
objection,  for  example,  based  on  its  being  the  ship- 
owner's duty  to  repair  and  then  to  proceed — an  objec- 
tion which  can  readily  be  answered,  but  in  quite  another 

(/)  Aixvood  V.  BeUar  (1879),  4  Q.  B.  D.  342,  at  p.  354. 


22i 


PORT  OF  refugp:  expenses. 


fCHAP.  V. 


way  (m) — Cockburn,  C.  J.,  answers,  by  maintaining  that 
it  is  not  in  any  case  obligatory  upon  him  to  repair  liis 
ship  and  complete  his  contract,  if  he  is  content  to  give 
up  his  freight.  This  opens  a  Iprge  question,  which  his 
lordship  discusses  at  great  length,  and  arrives  at  conclu- 
sions which  several  of  the  learned  judges  who  came  later 
upon  the  stage  strongly  dissent  from.  The  question, 
how^ever,  as  Cockburn,  C.  J.,  himself  points  out,  but  not 
until  he  has  exhausted  it,  has  no  necessary  bearing  upon 
the  controversy  at  present  before  us ;  and  it  may  here 
be  passed  over,  especially  as  it  is  to  be  more  fully  con- 
sidered in  this  volume  in  a  more  convenient  place  (??). 
Another  thing  which  has  tended  to  weaken  the  effect 
of  this  judgment  is  that,  from  several  expressions 
used  in  it,  it  appears  that  the  learned  judge  has  not 
always  sufficiently  limited  the  end  in  view,  requisite 
to  constitute  a  general  average  act,  to  the  attainment  of 
safety;  inclining  a  little,  as  it  seems,  to  the  doctrine  that 
what  is  done  for  the  completion  of  the  common  adven- 
ture or  voyage  may  give  rise  to  a  general  average. 
There  is,  however,  no  reason  to  think  that  an}-  heresy  of 


(m)  It  roiglit  be  answered,  for 
example,  by  pointing  out  tbat  the 
argument  proved  too  much,  since  if 
tbe  sbip  can  only  be  saved  by  cutting 
away  a  mast,  it  is  tbe  master's  duty, 
and  therefore  obligatory  on  the  owner, 
to  cut  it  away.     (See  Chap.  I.) 

Or,  it  might  be  said,  if  we  were 
to  go  behind  the  immediate  motive 
which  induces  a  sacrifice  to  the 
ulterior  causes  or  inducements  which 
may  call  that  motive  into  play,  we 
should  make  havoc  with  the  most 
elementary  rules  of  general  average. 
Is  a  jettison,  for  example,  not  gene- 
ral average  because  it  has  been  ne- 
cessitated bj'  a  leak,  which  again 
was  caused  by  a  damage  to  the  ship, 


which  damage  it  was  the  master's 
duty  to  repair  at  once  at  his  own 
expense  ?  Suppose,  therefore,  that 
he  might  have  saved  the  ship  without 
a  jettison  by  putting  in  at  a  port  of 
refuge  close  at  hand — but  at  an  ex- 
pense greater  than  the  value  of  what 
is  jettisoned — would  the  master  be 
bound  either  to  bear  up,  that  is  to 
say,  to  incur  a  greater  loss  in  order 
to  save  a  lesser  ;  or  should  the  ship- 
owner bear  exclusively  a  certain 
proportion  of  the  loss  by  jettison, 
proportionate  to  that  which  he  would 
have  borne  had  he  put  into  port  to 
repair  ? 

(n)  Post,  pp.  272—275,  n.  (h). 


SECT.  XLVI.]  ATWOOD  V.  SELLAK.  '-^^^ 

his  on  this  point  taints  or  affects  tlie  reasoning  of  the 
passage  I  have  cited.  There  is  much  in  the  later  por- 
tion concerning  which  so  much  cannot  be  said ;  but  all 
this  may  be  passed  over  as  being  certainly  now  over- 
ruled and  of  no  authority. 

Coming-  now  to  the  second  question — the  degree  of  On  the 

c  J-  ^    ^  ^       practice  oi 

authority  to  be  assigned  to  the  practice  of  adjusters  in  adjusters. 
times  past — the  learned  Chief  Justice  said  that,  if  found 
at  variance  with  legal  principles,  it  could  not  prevail, 
or  be  considered  as  having  settled  the  law. 

"  The  practice  in  question,"  ho  said,  "  is  not  a  usage  of  trade  by 
•which  the  terms  of  a  contract  may  be  interpreted  or  modified.  It  is 
not  the  inveterata  'praxis  of  a  court  or  courts  having  judicial  autho- 
rity, and  which  must,  therefore,  be  taken  to  be  the  law  though 
inconsistent  with  general  principles.  The  authority  of  average 
adjusters  may  be  said  to  be  of  an  anomalous  character.  By  the 
consent  of  shipowners  and  merchants  they  act  as  a  sort  of  arbi- 
trators in  the  settlement  of  matters  of  average;  but  they  are  bound, 
in  the  adjustment  of  such  claims,  to  follow  the  law;  and  in  the 
practice  they  have  adopted  they  have  not  acted  or  intended  to  act 
on  or  give  effect  to  any  mercantile  usage,  but  have  intended  to 
give  effect  to  what  they  believed  to  be  the  law;  but  they  have  mis- 
taken it"  (o). 

S  47.  The   case  was   carried  to  the   Court   of  Ap-  AtwoodY. 
peal  (;>),  and  was  there  argued  before  Bramwell,  Bag-  Cuurt  of 
gallay,   and    Thcsiger,    LL.J.     One    of    the    arguments 
used  by  counsel  for  the  defendants  was,  that  there  was 

(o)  4  Q.  B,  D.  342,  at  p.  o63.     See  differ    and    distinguish    the  law   of 

also  the  directions  of  Cockburn,  C.J. ,  general    average    in  England    from 

to  the  jury  in  ^c/tarcZ  V.  i?//'y  (1874),  that    universally    accei)ted,     and    it 

31   L.   T.  (N.   S.)   647.     In  Pirie  v.  might  now  bo  fairly  established  that 

Middle  Dock  Co.  (1881),  44  L.  T.  420,  this  important  branch  of  our  com- 

Watkin  Williams,  J.,  says: — "The  mercial  law  is  governed  by  the  piiu- 

still  more  recent  case  of  Atwaod  v.  ciples  of  the  common  law  of  England, 

Sel/ar,  in  the  Court  of  Appeal,  was  a  embracing  within  it  the  principles  of 

further  blow  to  the  supposed  custom  the  general  maritime  law." 

and  usages  which  were  supposed  to  {]>)  (1880),  o  Q.  15.  D.  286. 

L.  <i 


226  PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

an  inconsistency  on  the  plaintiff's  part,  in  professing  to 
claim  as  general  average  tlie  entire  expense  occasioned 
by  putting  into  port  and  yet  not  claiming  (presumably 
because  he  had  no  right  to  claim)  the  wages  and  keep 
of  the  master  and  crew  during  the  detention.  This 
argument,  as  will  be  seen,  was  dealt  with  in  the  judg- 
ment. The  Court  of  Appeal  unanimously  confirmed 
the  judgment  of  the  Queen's  Bench  Division.  Their 
judgment  was  delivered  by  Lord  Justice  Thesiger. 

Thesiger,L.J.  "The  question  raised  by  this  appeal,"  said  the  learned  Lord 

Justice,  "is,  whether  in  the  case  of  a  vessel  going-  into  port  in 
consequence  of  an  injury  which  is  itself  the  subject  of  general 
average,  the  expenses  of  warehousing  and  reloading  goods  neces- 
sarily unloaded  for  the  purpose  of  repairing  the  injury,  and  expenses 
incurred  for  pilotage  and  other  charges  on  the  vessel  leaving  the 
port,  are  the  subject  of  general  average  also. 

"  The  matter  came  before  the  court  below  in  the  form  of  a 
special  case,  and  upon  it  the  court  decided  in  favour  of  tlae  plain- 
tiffs, who  assert  that  the  expenses  in  question  are  the  subject  of 
general  average.  The  special  case  states  a  long-continued  practice 
of  British  average  adjusters,  in  adjusting  losses  in  cases  where  ships 
have  put  into  port  to  refit,  whether  such  putting  into  port  has  been 
occasioned  by  a  general  average  sacrifice  or  a  particular  average 
loss,  to  treat  the  expense  of  discharging  the  cargo  as  general  ave- 
rage; and  the  expense  of  warehousing  it  as  particular  average  on 
the  cargo,  and  the  expense  of  the  re-shipment  of  the  cargo,  pilotage, 
port  charges,  and  other  expenses  incurred  to  enable  the  ship  to 
proceed  on  her  voyage,  as  particular  average  upon  the  freight.  It 
was  not,  however,  and  could  not  reasonably  be  contended  for  the 
defendants,  that  the  practice  could  be  put  so  high  as  a  custom  im- 
pliedly incorporated  in  the  contract  between  the  parties;  and  during 
the  course  of  the  argument  we  intimated  our  opinion,  founded  on 
the  language  of  the  special  case  with  regard  to  this  practice,  and, 
especially,  the  language  of  the  fifth  paragraph  (g),  that  the  question 

(9)  The  fifth  paragraph  is — "Aver-  plicable  to  the  subject.     There  is  an 

age  adjusters  regulate  theii*  rules  of  association  of  average  adjusters  which 

practice  in  accordance  with  what  they  holds  meetings  from  time  to  time  at 

consider  are  the  legal  principles  ap-  which  the  rules  of  practice  are  dis- 


SECT.  XLVir.]       ATWOOD  V.  SELLAR,  IN  APPEAL.  227 

between  the  parties  must  be  decided  in  accordance  with  legal  prin- 
ciples and  authority  which  the  practice  of  the  average  adjusters 
professes  to  follow. 

"As  a  matter  of  principle,  we  are  clearly  of  opinion  that  the  Principle: 
judgment  of  the  majority  of  the  court  beloAv  in  favour  of  the  plain-  ^°^|g  an™  ' 

tiffs  was  rioht.     The  principle  which  underlies  the  whole  doctrine  consequential^ 

1  1        1  •  T  1    f'-a-u^ed  by 

of  general  average  contribution  is    that    the    loss,  immediate    and  sacrifice,  is 

consequential,  caused  by  a  sacrifice  for  the  benefit  of  cargo,  ship,  ^^"^^  ^J  a^^- 
and  freight,  should  be  borne  by  all.  This  principle  is,  in  the 
abstract,  conceded  by  counsel  for  the  defendants,  and  its  application 
to  the  present  case  is  admitted  to  the  extent  of  allowing  the  ex- 
penses of  unloading  the  goods,  for  the  purpose  of  doing  the  neces- 
sary repairs  to  the  vessel  to  enable  it  to  proceed  on  its  voyage,  to 
be  the  subject  of  general  average  contribution;  but  they  attempt 
to  distinguish  such  expenses  from  those  of  warehousing  and  reload- 
ing the  cargo,  and  of  outward  port  and  pilotage  charges,  by  the 
suggestion  that  the  common  danger  to  the  whole  adventure  is  at 
an  end  when  the  goods  are  unloaded;  and  that  general  average 
ceases  at  the  point  of  time  when  the  common  danger  is  at  an  end. 
The  proposition  is,  as  will  appear  later,  sound  when  applied  to  cases 
in  which  a  ship  is  damaged  by  a  peril  of  the  sea,  and,  before  any 
voluntary  sacrifice,  such  as  putting-  into  an  intermediate  port,  is 
made,  the  goods  are  unshipped  and  in  safety;  but  its  application  to 
a  case  like  the  present  is  not  admissible.     A  vessel  which  has  put  Doesdis- 

into  port  to  repair  an  injury  occasioned  by  a  general  average  sacri-   chargmar 

^  •■•  .  .  .  car^ro  ccme 

fice  may  be,  and  generally  is,  when  in  port,  in  perfect  safety;  and  -within  that 

if  by  the  expression  '  common  danger  '  be  meant  danger  of  actual  P"^^'P 
injury  to  vessel  and  cargo,  there  is  no  more  danger  to  the  goods 
when  on  board  the  vessel  being-  in  port  than  when  stowed  in  a 
warehouse  on  shore;  and,  indeed,  in  many  cases  only  a  portion  of 
the  goods  is  removed  from  the  vessel  in  order  to  do  the  repairs  to 
her,  while  the  remainder  of  the  goods  is  left  on  board.  If,  on  the  jf  jtdoes 
other  hand,  by  '  common  danger  '  be  meant  the  danger  of  the  vessel,  does  reload- 
with  her  cargo,  being  prevented  from  prosecuting  her  voyage,  then 
there  is  no  more  reason  why  the  expenses  of  warehousing  and  re- 
loading, and  the  expenses  incurred  for  pilotage  and  other  charges 
paid  in  respect  of  the  vessel  leaving  port  and  proceeding  on  her 
voyage,  should  not  constitute  general  average,  than  there  is  reason 

cussed  and  altered  or  modified  with  reference  to  legal  decisions."    (4  Q.  B.  D. 
at  p.  343.) 

q2 


so 


228 


POKT  OF  REFUGE  EXPENSES. 


[chap.  V. 


The  •whole 
"thing,  in  and 
out,  is  one 
operation. 


Objection :  if 
■so,  why  not 
■claim  crew's 
wages  and 
provisions  ? 


for  saying-  that  unloaded  and  warehoused  goods  should  not  contri- 
bute, as  it  is  clear  in  a  case  of  voluntary  sacrifice  that  they  must, 
to  the  expenses  of  the  necessary  repairs  "  [i.e.,  general  average  re- 
pairs] "  to  the  vessel.     Both  classes  of  expenses  are  extraordinary 
expenses  consequent  upon  the  voluntary  sacrifice,  and  necessary  for 
the  duo  prosecution  of  her  voyag-e  by  the  vessel  with  her  cargo. 
Neither  class  can,  as  a  general  proposition,  be  said  to  be  incurred 
exclusively  for  the  benefit  of  either  ship  or  cargo.     In  some  cases  it 
might  be  for  the  interest  of  a  shipowner  to  terminate  the  voyage  at 
the  port  where  the  vessel  puts  in  to  repair  a  disaster,  while  it  might 
be  all-important  for  the  goods-owner  to  have  his  goods  carried  on 
by  the  same  vessel.     In  other  cases  the  position  of  the  parties  migiit 
be  reversed;    but  however  this  may  be,  the  going  into  port,  the 
unloading,  warehousing ,  and  reloading  of  the  cargo,  and  the  coming 
out  of  port,  are,  at  all  events,  parts  of  one  act  and  operation,  resolved 
upon,  and  carried  through,  for  the  common  safety  and  benefit,  and 
properly  to  be  regarded  as  continuous.     The  shipowner  is  at  least 
entitled  to  reship  the  goods  and  prosecute  his  voyage  with  them; 
and  the  expenses  necessary  for  that  purpose,  being  ex  hypothesi 
consequent  upon  a  damage  voluntarily  incurred    for    the    general 
advantage,  .should  legitimately  be  the  subject  of  general  average 
contribution;  or,  to  use  the  language  of  Lord  Tenterden  in  his  work 
:on  Shipping,  '  If  the  damage  to  be  repaired  be  itself  an  object  of 
contribution,    it    seems    reasonable    that    all     expenses    necessary, 
although  collateral  to  the  reparation,  sliould  also  be  objects  of  con- 
tribution; the  accessory  should  follow  the  nature  of  its  principal.' 
"  But  it  is  said  for  the  defendants  that  if  this  be  so,  and  the 
principle  be  carried  out  to  its  logical  consequences,  expenses  in- 
curred for  Avages  and  provisions  should  equally  form  the  subject  of 
general  average;  and  if  it  is,  as  they  suggest,  undeniable  tliat  they 
,do  not,  tlie  principle  must  itself  either  be  fault}^  or  at  least  not 
recog-nized  in  English  law.     As  a  matter  of  fact,  it  is  extremely 
doubtful  whether  the  expenses  for  wages  of  crew  or  provisions  in 
a  port  of  refuge  have  ever  been  disallowed  by  our  courts,  as  consti- 
tuting a  claim  for  general  average,  in  a  case  where  the  ship  has 
put  into   the   port  to   repair   damage   itself   belonging  to   general 
•average;   but,  even  if    the    assertion  were    correct,  the    conclusion 
drawn  would  by  no  means  follow.     That  the  principle  in  question 
is  not  faulty  we  have  endeavoured    to    show  in    the    observations 
already  made,  and  the  view  we  have  taken  upon  the  point  is  strongly 
confirmed  b}^  the  fact  that  it  is  recognized  and  carried  to  its  so-called 


SECT.  XLVII.l       ATWOOD  V.  SELLAE,  IN  APPEAL.  229" 


•J 


logical  consequences  as  regards  the  wages  of  crew  and  provisions 
in  all  other  countries  than  our  own.  That  the  principle  is  not 
recognized  in  English  law  is  not  proved  by  showing  that  expenses 
incurred  for  wages  of  crew  and  provisions  have  been  iinder  certain 
circumstances  disallowed  as  the  subject  of  general  average,  unless 
it  be  shown — -Avhich  it  has  not  been  to  us — at  the  same  time  that  they 
have  been  disallowed  upon  gTOunds  that  negative  the  principle;  and 
it  is  disproved  if  it  be  found  that,  notwithstanding  such  allowance  " 
\^qu.  disallowance],  "  the  expenses  in  question  in  this  case  have  been 
allowed.  All  that  in  sucli  a  case  can  be  said  is,  that  either  the 
courts  have  made  a  mistake  in  limiting  the  application  of  the  prin- 
ciple, or  that  its  limitation  is  due  to  some  real  or  supposed  rule  of 
public  policy. 

"  If,  then,  the  question  before  us  stood  only  upon  princij)le,  we 
should  have  no  hesitation  in  deciding  it  according  to  the  principle 
we  have  stated,  and  it,  at  least,  may  fairly  be  asked  what  other 
principle,  if  it  be  not  correct,  is  to  be  substituted  in  its  place.  But 
the  authorities  remain  to  be  considered  "  (r) . 

The  learned  judge  then  proceeded  to  give  a  careful 
analysis  of  the  conflicting  decisions  and  dicta  above 
referred  to,  and  concluded  as  follows : — 

"The  result  of  this  review  of  the  authorities  is  to  confirm  the 
opinion  which,  apart  from  authority,  we  entertain  and  have  already 
expressed  upon  the  question  submitted  to  us.  The  practice,  then,  of  Practice  cf 
the  average  adjusters,  as  stated  in  the  special  case,  appears  to  us  ^  -""^  ®^'^' 
to  be  neither  founded  upon  true  principles,  nor  to  be  in  accordance 
with  the  views  of  the  text-writers,  and,  so  far  as  there  is  case  autho- 
rity upon  the  matter,  it  appears  to  us  to  be  opposed  to  legal  decisions. 
It  is  a  practice,  too,  which  has  not  been,  as  the  practice  in  Steivart 
V.  West  India  and  Pacific  Steamship  Compajiy  (s)  was,  made  a  part 
of  the  contract  between  the  parties,  and  therefore  constitutes  na 
impediment  to  our  giving  effect  to  the  objections  to  its  validity; 
and  in  deciding  as  we  do,  that  the  judgment  of  the  majority  of  the 
coiu't  below  was  right  and  should  be  affirmed,  it  is  satisfactory  to 
us  to  know  that  the  law,  as  laid  down  in  the  judgment  of  the  court 
below  and  of  this  court,  is  placed  upon  a  footing  which  more  nearly 

(r)  Atwood  V.  Selhir  (1880),  5  Q.  B.  D.  286,  at  pp.  288— '291. 
(.s)  (1873),  L.  Pv.  8  Q.  B.  88. 


230  POET  OF  EEFUGE  EXPENSES.        [CHAP.  V. 

assimilates  it,  in  matters  in  which  assimilation  is  desirable,  to  the 
law  obtaining  in  other  mercantile  communities  "  (0- 

Svendseny.  ^  4g_  This  (lecisioH  was  reo^ardcd  as  conclusive  on 

Wallace.  «^  ^ 

the  question  immediately  before  the  courts,  where  the 
ship  had  put  into  port  on  account  of  a  sacrifice,  and  no 
attempt  was  made  to  carry  the  case  up  to  the  House  of 
Lords.  It  was  not  so  clear,  however,  whether  the  change 
of  practice  was  to  stop  here,  or  whether  it  should  be 
extended,  as  consistency  seemed  now  to  require,  to  the 
case  of  putting  in  on  account  of  accidental  damage  to  be 
repaired.  An  early  opportunity  was  taken  to  bring  this 
question  before  the  courts,  in  the  form  of  a  test  case. 

This  time  nothing  was  to  be  left  to  chance,  and  there 
were  to  be  no  admissions.  The  advocates  of  the  custom 
of  Lloyd's  thought  they  had  made  a  mistake  in  treating 
this  custom  as  a  mere  practice  of  average  adjusters. 
Having  got  a  fair  and  straightforward  case,  where  the 
facts  were  simple,  they,  as  defendants  representing  the 
cargo,  resisted  the  claim  made  on  them  for  their  share, 
as  general  average,  of  the  items  in  dispute,  namely,  the 
cost  of  warehousing  and  reloading  the  cargo,  and  of  the 
Pieaofcus-  expcnscs  of  quitting  tlic  port  to  resume  the  voyage.  This 
they  did  on  the  twofold  j^lea  :  first,  of  custom  ;  secondly, 
of  principle.  Their  first  plea  w^as,  that  there  was  a  cer- 
tain ancient  and  well-known  custom  amongst  shipowners, 
shippers,  and  consignees  of  cargo,  assured,  underwriters, 
and  average  adjusters,  applicable  to  voyages  from  Ran- 
goon to  Liverpool  (this  being  the  voyage  in  the  case),  in 
virtue  of  which,  when  a  ship  puts  into  a  port  of  refuge 
to  repair  accidental  damage  to  the  ship,  the  cost  of  ware- 
housing the  cargo  (meaning  the  warehouse- rent)  was 
chargeable  as   a  particular  charge  upon  the  cargo,  and 

(0  Atwood  V.  Sellar  (1880),  5  Q.  B.  D.  286,  at  p.  299. 


torn 


SECT.  XLVIII.]  SVENDSEN  V.  WALLACE.  231 

the  expense  of  reloading-  it  and  the  outward  j^ort  charges 
and  pilotage  to  sea,  were  chargeable  as  a  particular 
charge  on  the  freight.  This  custom  they  proposed  to 
prove  by  evidence  before  a  jury.  Secondly,  they  pleaded  Plea  on 
that,  independently  of  the  custom,  this  mode  of  treating 
the  expenses  in  question  was  right  in  principle.  This 
second  plea,  however,  would  obviously  not  need  to  be 
discussed  if  the  defendants  succeeded  in  establishing  the 
first. 

The  facts  were  these: — The  ship  Olaf  Trygvasoji,  Facts. 
owned  in  Norway,  on  a  voyage  with  a  cargo  of  rice  from 
Rangoon  for  Liverpool,  sprung  a  dangerous  leak  in  bad 
weather,  which  obliged  the  captain,  for  the  safety  of 
ship  and  cargo,  to  put  into  Rangoon  for  repair.  When 
in  port  the  cargo  was  necessarily  landed  in  order  to 
repair  the  ship,  and  also,  as  was  pointed  out  in  the 
House  of  Lords,  but  not  till  then,  for  its  own  preserva- 
tion :  it  was  warehoused,  and  after  the  ship  had  been 
rejjaired  it  was  re-shipped. 

One  point  in  the  case,  which  was  not  noticed  until  Part  freight 

paid  in 

the  case  reached  the  House  of  Lords,  and  then  was  so  advance. 
handled  as  to  have  a  very  remarkable  effect,  was  this : 
a  portion  of  the  freight  had  been  paid  in  advance,  and 
therefore,  in  accordance,  likewise,  with  the  custom  of 
Lloyd's,  a  corresponding  proportion  of  the  cost  of  reload- 
ing, and  of  the  outward  port  charges,  had  been  debited 
in  the  defendant's  adjustment,  not  to  the  shipowner,  but 
to  the  charterer,  on  the  ground  that  the  advance,  under 
the  terms  of  the  charter,  threw  the  risk  of  the  freight,  in 
respect  of  the  sum  advanced,  upon  the  charterer. 

The   fight    began,    naturally,    on    tiie    evidence    of  Evidence  of 
custom.     This  was  tried  at  Guildhall,  before  Mr.  Justice  as  to  custom. 
Lopes.     A  number  of  average  adjusters,  underwriters, 
and  others,  were  called  to  give  evidence  of  the  supposed 


232.  PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

custom  of  trade.  None  of  them,  however,  it  appears, 
were  able  to  get  higher  than  a  practice  of  average 
adjusters,  accej)ted  no  doubt  by  the  parties  interested, 
but  accepted  only  because  they  believed,  apparently  as  a 
matter  of  faith  for  the  most  part,  that  such  was  the  law. 
When  this  evidence  was  concluded,  counsel  for  the 
Lopes,  J.  plaintiff  appealed  to  the  learned  judge  to  say  whether 
there  was  any  evidence  of  a  custom  to  go  to  the  jury  ; 
and  he  ruled  that  there  was  not.  The  evidence,  he  said, 
.  amounted  only  to  this,  that  average  adjusters  regulated 
their  practice  by  what  they  believed  to  be  the  law,  and 
that  this  practice  varied  from  time  to  time.  He  therefore 
withdrew  the  case  from  the  jury  [ii). 

A  rule  was  thereupon  obtained  for  reviewing  the 
decision  of  the  learned  judge,  and  this  was  argued  before 
Grove  and  Mathew,  JJ.,  in  the  Queen's  Bench  Division. 
Both  judges  were  of  opinion  that  Lopes,  J.,  was  right. 

Grove,  J.  "The  question,"  said  Grove.  J.,   "-was,  whether  this  practice 

could  be  said  to  be  such  a  mercantile  custom  as  must  be  read  into 
and  incorporated  into  the  contract,  so  as  to  bind  the  parties.  In 
his  opinion,  it  had  none  of  the  general  characteristics  of  a  custom, 
either  in  its  origin  or  growth.  It  was  merely  the  practice  of  certain 
skilled  men,  wliich,  if  applied  generally,  would  enable  experts  really 
to  alter  the  law  of  the  land.  He  was  of  opinion,  moreover,  that  the 
case,  so  far  as  the  point  for  their  decision  was  concerned,  was 
governed  by  the  case  of  Atwood  v.  Sellar,  and  that  the  distinctions 
which  Mr.  Butt  had  contended  for  between  that  case  and  the  present 
did  not  apply  to  the  consideration  whether  the  alleged  custom  was 
to  have  the  force  of  law.  In  that  case  the  majority  of  the  judges 
in  the  court  below,  and  the  Court  of  Appeal  afterwards,  absolutely 
discarded  the  practice  of  average  adjusters.  Without,  therefore, 
absolutely  expressing  any  opinion  whether  the  charges  should  be 
general  or  particular  average,  he  was  of  opinion  that  the  learned 
judge  at  the  trial  was  right  in  holding  that  there  was  no  reasonable 
evidence  of  a  usage  controlling  the  contract,  and  that  the  rule  must 
be  discharged." 

{u)  Times,  4tli  April,  1882. 


SECT.  XLVIII.J  SVENDSEN  l\  WALLACE.  233 

Matlicw,  J.,  gave  judgment  to  the  same  effect. 

"In  his  opinion,"  he  said,  "the  evidence  justified  a  clearer  and  Mathew,  J. 
more  conclusive  inference  against  the  existence  of  any  usage  of  trade 
grounded  on  the  practice  of  average  adjusters  than  that  embodied 
in  the  findings  of  the  arbitrator  in  Ativood  v.  Sellar.  All  the  wit- 
nesses seemed  to  agree  that  it  was  the  duty  of  English  average 
adjusters  to  prepare  their  statements  in  accordance  with  the  law, 
and  that  they  were  employed  by  mercantile  men  for  this  purpose, 
and  that  it  was  their  custom  to  adapt  their  custom  to  the  law  as 
laid  down  by  the  court,  and  to  correct  their  practice  from  time  to 
time  when  it  was  shown  not  to  be  conformable  to  legal  principles. 
In  his  opinion,  therefore,  the  learned  judge  was  right  in  his  opinion; 
and  he  would  add,  that  he  thought  it  Avould  be  matter  of  regret  if 
English  average  adjusters  were  embarrassed  in  their  efforts  to  eman- 
cipate themselves  from  the  mistakes  of  their  predecessors  by  the 
suggestion  that  these  mistakes  were  now  embodied  in  the  mercantile 
law,  and  could  be  set  right  by  no  easier  method  than  by  an  act  of 
the  legislature.  He  desired,  further,  to  guard  himself  from  being- 
supposed  to  pronounce  any  opinion  upon  the  law"(x). 

No  attempt  was  made  to  appeal  against  this  deci-  Lopes,  /.,  ou 
sion.  The  next  stejD,  therefore,  was  to  obtain  the  judg-  principle. 
ment  of  Lopes,  J.,  on  tlie  second  plea;  that  is,  on  the 
question  whether  the  practice  referred  to  was  right  in 
principle.  As  to  this  the  learned  judge,  after  hearing 
the  arguments,  decided  against  the  defendants.  He  was 
bound,  he  said,  by  the  decision  in  Afwood  v.  Sellar,  for 
he  could  see  no  practical  distinction  between  the  two 
cases.  "  The  putting  into  a  port  of  refuge,  if  necessary, 
is  an  act  of  voluntarv  sacrifice,  undertaken  for  the 
common  benefit  of  the  adventure,  ship^  cargo,  and 
freight,  and  I  think  every  expense  consequent  upon  it, 
incurred  to  enable  the  ship  afterwards  to  proceed  safely 
on  her  voyage  with  her  cargo  so  as  to  earn  the  freight, 
is  incurred  for  the  common  benefit  of  the  adventure,  and 
is  chargeable  to  general  average  "  {?j). 

{x)  Times,  10th  June,  1882. 

{y)  Svendsen  v.  Wallace  (1883),  11  Q.  B.  D.  61G. 


234 


PORT  OF  EEFUGE  EXPENSES. 


[chap.  V. 


Question  of 
piinciple 
carried  to 
Court  of 
Appeal. 


Brett,  M.  li. 


Benefit  of 
common  ad- 
ventiu-e  not 
the  true  test 
of  general 
average. 


Consequence 
of  an  expense 
is  the  expense 
itself. 


This  (|uostioii  was  carried  to  the  Court  of  Appeal. 
In  this  court,  for  the  first  time  in  this  litigation,  judg- 
ment was  given,  by  the  majority,  for  the  defendants. 
The  importance  of  the  decision,  and  the  fact  that  there 
are  important  variations  in  the  judgments,  renders  it 
necessary,  in  spite  of  their  great  length,  to  set  them  forth 
here  prettv  fullv. 

Brett,  M.  K.,  at  the  outset  of  liis  judgment,  laid  it  down  that  iu 
this  case  the  vuiloading  of  the  cargo  was  necessary  iu  order  that  the 
ship  might  be  repaired,  but  not  necessary  on  account  of  any  damage 
to  be  suffered,  or  of  any  damage  already  suffered,  by  the  cargo  (^z). 
He  then  attacked  -with  much  vigour  a  theory  which  had  been  set 
up  in  argument  for  the  plaintiff,  namely,  that  all  expenses  for  the 
common  benefit,  in  the  sense  of  being  necessary  for  the  completion 
of  the  common  adventure,  or  carrying  the  cargo  to  its  destination  in 
the  ship,  were  the  subjects  of  general  average.  For  "benefit,"  said 
the  learned  judge,  read  "preservation;"  for  "common  adventure," 
read  "ship,  freight,  and  cargo."  If  the  terms  used  meant  any  more 
than  this,  the  theory  set  up  would  be  an  extension  of  the  governing- 
principle  laid  doAvn  by  Lawrence,  J.,  in  Birkley  v.  Presgrave  (a); 
"but  if  the  proposition  of  Mr.  Justice  Lawrence,"  said  the  learned 
judge,  "is  the  true  and  accepted  law  of  England,  as  I  think  it  is, 
no  court  now  existing  has  power  to  alter  that  principle  while  it  is 
the  laAv  "  (b).  This  principle  the  learned  judge  ex^Dlains  in  a  verj^ 
remarkable  manner,  and  this  explanation  furnishes  the  keynote  of 
his  judgment.  If  he  is  right,  and  if  this  explanation  is  to  be  adopted 
throu.ghout  the  law  of  general  average,  we  certainly  have  all  been 
wrong  hitherto.  "This  proposition,"  says  the  learned  judge,  "read 
witli  regard  to  expenses,  will  read  thus:  all  loss  which  arises  iu 
consequence  of  extraordinary  expenses  incurred  for  the  preserva- 
tion of  the  ship  and  cargo  comes  within  general  average.  But  the 
loss  which  arises  from  an  expense  is  the  expense  itself.  Therefore 
we  must  read  thus:  every  expense  incurred  for  the  preservation  of  the 
ship  and  cargo  comes  Avithin  general  average.  ApjD lying  this  rule 
in  its  ordinary  sense  to  each  item  successively  claimed  as  an  item  of 
expenditure  in  respect  of  which  a  general  contribution  in  any  given 


(z)  (1884),  13  Q.  B.  D.  at  p.  71. 
(a)  (1801),  1  East,  220. 


(h)  Svendsen  v.  WitUace  (1884),  13 
Q.  B.  D.  69,  at  p.  76. 


SECT.  XLVIir.]       SVENDSEN  V.  WALLACE,  IN  APPEAL.  235 

case  is  due,  the  question  must  be,  Was  this  item  of  expenditure, 
at  the  moment  it  was  incurred,  incurred  for  the  safety  of  both  the 
ship  and  cargo?  (c)     .... 

"We  have  to  aj)ph'  the  rule,  as  stated  by  Mr.  Justice  Lawrence, 
to  the  case  of  a  ship  putting  into  a  port  of  distress  for  repairs  in 
consequence  of  damage  done  by  sea  jDerils.  If  there  is  danger  to 
the  preservation  of  both  ship  and  cargo  from  destruction  if  the  ship 
remains  at  sea,  the  act  of  putting  into  port  to  repair  is  an  cxtra- 
ordinar}^  act,  which  may  well  be  called  a  general  average  act.  If  in 
order  to  do  that  act  an  expenditure  is  reasonably  incurred,  that 
expenditure  is  a  general  average  expenditure.  If  in  order  to  do 
that  act,  towage,  pilotage  or  inward  dues  must  be  paid,  those  ex- 
penditures are  all  and  each  general  average  expenditures.  When 
the  ship  is  in  the  port  of  distress  for  repair,  other  acts  are  often 
done,  and  other  expenditures  are  often  incurred,  which  must  each 
be  considered.  Each  of  these  must  be  considered  as  if  it  were  the 
sole  act  or  expenditure,  and  also  Avhether  it  may  be  treated  as  a 
part  of  another  act  or  expenditure.  When  the  shixi  is  in  the  port  of 
distress,  it  often  happens  that  the  cargo  is  unloaded  and  warehoused, 
or  otherwise  protected,  and,  if  necessary,  manipulated;  the  ship  is 
repaired,  the  cargo  is  reloaded,  the  ship  is  taken  out  to  sea,  and 
proceeds  on  her  voyage.  When  the  ship  and  cargo  are  in  the  port, 
both  may  still  be  in  danger  of  destruction,  or  the  ship  alone,  or  the 
cargo  alone.  If  both  ship  and  cargo  are  in  danger,  it  is  impossible 
to  conceive,  as  a  fact,  that  anything  which  can  substantially  be  called 
repairs  can  be  done  to  the  ship  whilst  the  cargo  is  in  her.  The  cargo 
must  then  be  landed  for  the  safety  of  both.  But  the  ship  alone  may 
be  in  danger,  as,  for  instance,  of  breaking  her  back  on  a  falling  tide 
if  the  cargo  be  left  in  her,  though  the  cargo  from  its  nature  would 
not  be  in  danger.  In  such  a  case  the  cargo  must  be  landed  solelj^ 
for  the  safety  of  the  ship.  The  cargo  alone  may  be  in  danger,  as 
if  the  injured  ship  be  on  the  ground  and  safe,  but  the  cargo  be 
perishable  if  wetted,  then  the  cargo  must  be  landed,  but  solely  for 
the  safetj'  of  the  cargo.  Or  it  may  be  necessary  to  land  the  cargo, 
though  neither  it  nor  the  ship  be  in  immediate  danger,  or  though 
the  ship  only  be  in  danger,  because  the  injur}^  to  the  ship  cannot  be 
repaired  without  the  removal  of  the  cargo.  In  the  first  case  the 
cost  of  unloading — treating  the  unloading  as  Avithiu  itself  the  sole 
act  done — is  clearly  a  general  average  expenditure.  In  the  second, 
third,  and   fourth    cases    the    expenditure,    treated    as    if    it   Avere 

(c)  13  Q.  B.  D.  at  p.  73. 


236 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


Can  one  act 
be  treated  as 
part  of 
another  act? 


average 


the  cost  of  the  sole  act  done,  cannot  be  a  general 
expenditure.  But  v:e  must  consider  whether  any  of  the  three  can 
be  treated  as  part  of  another  act  which  is  a  general  average  act. 
The  only  act  to  which  they  can  be  referred  is  the  act  of  going  into 
port  to  repair.  In  the  second  and  third  cases  which  arise,  whether 
the  repairs  to  the  ship  coidd  or  could  not  be  done  as  a  matter  of 
carpentering  without  the  cargo  being  removed,  it  cannot  be  truly 
said  that  the  landing  of  the  cargo  is  a  part  of  the  act  of  going  into 
port  to  repair.  In  the  fourth  case,  if  you  take  the  act  of  sacrifice 
to  be  not  merely  the  going  into  port,  but  the  going  into  port  to 
repair,  and  if  the  one  act  be  the  going  into  port  to  repair,  and  the 
repair  cannot  be  done  without  the  landing  of  the  cargo,  which  is 
the  hypothesis,  then  the  landing  of  the  cargo  is  a  part  of  the  act 
of  going  into  port  to  repair.  It  is  a  part  of  the  act  which  is  done 
in  order  to  put  the  ship  in  such  a  position  that  she  can  be  repaired, 
which  is  the  real  meaning  of  the  colloquial  maritime  phrase,  '  going 
in  to  repair.'  The  expression  then  is,  going  in  for  repairs.  The 
real  accurate  meaning  is,  going  in  to  be  repaired,  or  going  in  so 
as  to  be  in  a  position  which  will  enable  her  to  be  repaired.  The 
landing  of  the  cargo  in  such  case  is,  upon  the  hypothesis,  so  neces- 
sary a  part  of  the  act  of  taking  the  ship  into  port  so  as  to  be  in  a 
position  to  be  repaired,  that  such  act  cannot  be  said  to  be  usefully 
completed  until  the  cargo  is  landed.  This  fourth  case  has  always 
been  treated  as  if  the  going  into  port  to  repair  was  one  act,  and  as 
if  that  were  the  one  act  of  sacrifice.  The  cost  of  unloading  has 
consequently  in  such  case  always  been  allowed  as  a  general  average 
expenditure.  Treated  in  this  way,  which  seems  to  be  a  not  unreason- 
able way  of  treating  the  case  as  a  matter  of  business,  the  allowance 
of  the  item  is  not  against  the  j)i'iiiciplo  of  law,  and  therefore  is 
rightly  allowed." 

Coming  now  to  the  subsequent  expenses,  the  learned  judge  con- 
tinues:— "  When  the  cargo  is  landed,  it  may  or  may  not,  according  to 
its  own  nature,  or  the  circumstances  of  the  locality,  require  to  be 
warehoused  or  otherwise  protected.  It  may,  in  consequence  of 
partial  damage  already  suffered,  or  from  its  own  nature,  require 
for  its  own  safety  to  be  manipulated,  as,  for  instance,  to  be  unpacked 
or  dried;  but  such  acts  cannot  possibly  be  necessary  for  the  safety 
or  preservation  of  the  ship.  She  is  at  that  moment  safe  or  unsafe; 
but  these  acts  cannot  contribute  in  any  way  to  her  safety  if  she 
No  part  of  act  is  unsafe.  The}^  cannot  be  said  to  bo  a  part  of  the  act  of  going' 
into^Bor""         ^^^^^  1^°^'^  ^*^*  repair;  they  have  no  reference  to  the  act  of  repairing. 


Warehousing 
cargo. 


.SECT.  XLVIII.J       SVENDSEX  V.  WALLACE,  IN  APPEAL. 


237 


or  of  putting-  the  ship  into  a  position  in  which  she  can  be  repaired. 
They  are,  therefore,  not  within  the  principle.  The  repairing  of  the 
ship  has  nothing  to  do  with  the  safety  of  the  cargo;  it  is  done  in 
respect  of  the  ship  alone.  The  reloading-  of  the  cargo  and  the  out- 
ward expenses  are  expenses  of  acts  done  when  both  ship  and  cargo 
are  safe  from  existing  danger,  and  are,  therefore,  not  within  the 
rule.  They  cannot  be  said  to  be  a  part  of  the  act  of  placing-  the 
ship  in  a  position  to  be  repaired.  Unless,  therefore,  we  are  bound  Conclusion. 
by  authority  to  hold  otherwise,  I  am  of  opinion  that,  according- 
to  the  law  of  England,  when  a  ship  is  obliged,  for  the  safety  of 
ship  and  cargo,  to  go  into  and  goes  into  a  port  of  distress  in  order 
to  repair  damage  done  by  sea  peril,  the  expenses  of  going  into  the 
port  are  general  average  expenses;  that  if  it  is  necessary  for  the 
safety  of  both  ship  and  cargo  to  unload  the  cargo,  or  if  it  is  neces- 
sary to  unload  the  cargo  in  order  to  repair  the  ship,  though  it  is 
not  necessary  for  the  safety  of  the  cargo,  the  expense  of  unloading- 
the  cargo  is  a  general  average  expense;  but  if  the  unloading  of  the 
cargo  is  not  for  either  of  these  causes  the  expense  of  unloading  is 
not  a  general  average  expense.  I  am  of  opinion,  in  the  same  way 
and  in  the  same  case,  that  the  expenses  of  warehousing,  guarding, 
or  manipulating  the  cargo,  of  repairing  the  ship,  of  reloading  the 
•cargo,  of  taking  the  ship  out  of  port,  of  the  charges  of  going  out 
of  port,  are  not  general  average  expenses  "  (cZ). 

The  learned  judge  then  gives  his  reasons  for  not  considering-  Effect  of 

himself  bound  bv  the  decision  in  Atwood  v.  Sellar  (e):—'li  with  -^^^fo"^^'- 

^   -^  Sellar  con- 

ordinary  rules  that  case  binds  us,"  he  said,  "  I  will  not  hesitate  to  sidered. 
obey  it,  though  with  deference  I  could  not  have  agreed  with  it. 
.  .  .  I  do  not  think  that  the  real  ground  of  the  decision  in  Atwood 
V.  Sellar  (e)  in  the  Court  of  Appeal  was,  that  all  the  acts  done 
in  a  port  of  distress  are  one  continued  act.  What  is  the  one  act? 
By  what  name  can  it  be  expressed?  Warehousing-  the  cargo,  reload- 
ing it,  going  out  of  port,  cannot  be  said  to  be  parts  of  the  act 
of  taking  the  ship  into  port  in  order  to  enable  her  to  be  repaired. 
Reloading  the  cargo  and  taking  the  ship  out  of  port,  Avhen  the  ship 
is  repaired,  cannot  be  parts  of  the  act  of  repairing-  the  ship.  The 
real  ground  of  the  decision  was,  I  think,  that  where  the  putting- 
into  port  for  repairs  is  the  necessary  consequence  of  a  previous 
general  average  sacrifice,  the  laAv  of  England  is  as  elastic  in  respect 

{d)  Svendsen  v.  Wallace  {ISSi),  13  Q.  B.  D.  69,  at  p.  77. 
(e)  (1880),  o  Q.  B.  D.  280. 


238 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


Bowen,  L.  J. 


General  aver- 
ao-e  defined. 


of  the  subsequent  acts  doue  and  expenses  incurred  in  the  port  as 
the  American  and  other  laws  are  stated  to  be  in  all  cases  of  a  ship 
necessarily  putting-  into  a  port  of  distress  to  repair.  And  for  that 
proposition  there  were,  before  the  decision  in  Atvoood  v.  Sellar  (/), 
many  weighty  dicta  by  English  writers  of  authority  and  English 
judges,  but  all  which  dicta,  threw  a  distinction  between  the  going 
into  a  port  of  distress  in  consequence  of  a  voluntary  sacrifice,  and  of 
putting'  into  port  in  consequence  of  a  particular  average  damage. 
I  adopt  that  distinction  because  I  do  not  think  that  we  are  bound 
in  the  present  case  by  the  decision  in  Atwood  v.  Sellar  (/),  and 
the  propriety  of  that  decision,  with  reference  to  the  facts  on  whicli 
it  was  decided,  we  are  not  at  liberty  to  question  "  {g). 

Bowen,  L.  J.,  whose  judgment  I  take  next,  as  sub- 
stantiallv  concurrino:  with  that  of  the  Master  of  the 
KoUs,  said,  after  setting  forth  the  facts  of  the  case — 

"  It  is  essential  at  the  outset  to  bear  in  mind  two  things — the 
nature  of  every  general  average  sacrifice  and  the  object  of  every 
general  average  contribution.  A  general  average  sacrifice  is  an 
extraordinary  sacrifice  voluntarily  made  in  the  hour  of  peril  for  the 
common  preservation  of  ship  and  cargo.  There  is  no  difference  in 
principle  between  a  mast  voluntarily  cut  away,  an  extraordinar}' 
expenditure  voluntarily  incurred,  and  extraordinary  loss  of  time  and 
labour  voluntarily  accepted,  provided  that  in  each  case  the  sacri- 
fice is  made  for  the  common  safety  in  a  time  of  danger.  Next  as 
to  the  object  of  general  average  contribution.  It  is  to  indemnify 
the  person  making  the  general  average  sacrifice  against  so  much 
of  the  loss  caused  directly  thereby  as  does  not  fall  to  his  own  pro- 
portionate share.  This  pro  rata  indemnity  will  not  be  complete 
without  including  in  the  calculation  expenses  which,  though  not 
themselves  within  the  definition  of  voluntary  sacrifice,  nevertheless 
are  directly  caused  by  a  voluntary  sacrifice,  and  must,  therefore, 
be  recoux^ed  if  the  loss  which  the  sacrifice  causes  is  to  be  borne 
pro  rata.  '  All  loss,'  says  Mr.  Justice  Lawrence,  in  the  case  of 
Birldey  v.  Presgrave(h),  'which  arises  iji  consequence  of  extra- 
ordinary sacrifices  made  or  expenses  incurred  for  the  preservation 
of  ship  and  cargo  comes  within  general  average,  and  must  be  borne 
proportionately  by  all  who  are  interested.' 


(/)  (18S0),  5  Q.  B.  D.  286. 

l<l)  Svendsen  v.  Wallace  (1884),  13 


Q.  B.  D.  69,  at  p.  78. 
(/i)  (1801),  1  East,  228. 


SECT.  XLVIII.J       SVENDSEN  V.  WALLACE,  IN  APPEAL. 


239 


"  The   question   whether   extraordinar}'^   expenditure   after  the  Concerning 

.  consequences 

entry  into  a  port  of  refuge  is  rightly  chargeable  to  general  average,  of  general 

necessarily  depends  on  the  circumstances  of  each  case.  Each  item  average  acts, 
of  expenditure  which  is  challenged  must  be  considered  on  its  own 
merits  with  reference  to  two  tests.  The  first  test  is,  whether  such 
item  itself  fulfils,  as  against  some  or  all  of  the  interests  to  be  con- 
sidered, the  definition  of  a  general  average  sacrifice;  the  second  is, 
whether  such  item,  though  not  itself  a  general  average  sacrifice,  is 
nevertheless  an  expenditure  caused  or  rendered  necessary  by  one. 
No  supposed  conveniences  of  calculation,  aud  no  practice  of  average 
adjusters,  can  justify  taking  one  man's  money  to  pay  what  by  law 

is  another  man's  individual  loss  "  {%).     The  learned  judge  then  pro-  Endof  adven- 

■  ^  '•       °  ^  ture  not  the 

ceeded  to  discuss  and  condemn  the  "end  of  the  adventure  "  theory,  test  of  general 

The  only  thing  he  finds  in  favour  of  it,  iii  the  Avay  of  authority,  is  ^'^^'^^^^' 

^  °  .  Sally. 

the  decision  in  Hall  v.  Janson  (k),  where  it  was    held    that    the  janson. 
unloading  and  reloading  of  cargo,  for  the  sake  of  effecting  repairs 
upon  the  ship,  might  give  rise  to  a  liability  to  contribution  on  the 
part  of  freight.     "Since  freight  perishes,"  he  says,  "if  the  voyage 
is  frustrated,  it  may  not  have  been  unreasonable  to  hold  that  freight 
ought  to  contribute  to  the  expenses    incurred    in    unloading    and 
reloading  a  cargo,  the  unloading  of  which  was  solely  undertaken 
for  the  sake  of  repairing  a  ship.     This  limited  proposition,  with 
which  alone  Hall  v.  Janson  (k)  was  concerned,  by  no  means  warrants 
the  conclusion  that  the  cargo  ought  in  turn  to  contribute  whenever 
any  expenditure  is  incurred,  not  of  saving  the  vessel  and  its  contents, 
but  merely  for  the  sake  of  prosecuting  the  voyage.     In  the  subse- 
quent case  of  Walthew  v.  Mavrojani  (I),  the  English  doctrine  has 
been  restated  aud  explained,  and    the    language  of    the    court    in 
Harrison  v.  Bank  of  Australasia  (m)  is  to  the  same  effect.    We  have 
been  asked  on  another  and  a  different  principle  to  depart  from  the 
strict  English  theory  in  favour  of  port  of  refuge  expenses  follow- 
ing upon  a  particular  average  loss,  upon  the  ground  that  they  all 
form  part  of  a  continuous  operation,  the  whole  of  which  was  con-  Continuous 
templated  by  the  captain  at  the  time  when  he  put  into  port.     The  theory, 
intentions  of  the  captain  are  no  doubt  material  in  considering-  the  Intentions  of 
Cj[uestion  whether  the  act  done  by  him  was  performed  only  for  the  far  to  be 
benefit  of  his  ship,  or  for  the  common  preservation  of  both  ship  and  ^i"o"oht  i^i- 

(/)  SvemUen  v.  Wallace  (1884),  13  (/)    (1S70),    L.   I^.    b   Exch.    116  ; 

Q.  B.  D.  69,  at  p.  84.  ante,  p.  l'J4. 

(7c)  (1855),  4  E.  &  B.  500;  24  L.  J.  (m)  (1872),  L.  E.  7  Exch.  50. 
(Q.  B.)  97. 


240 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


cargo 


Grounds  for 
treating  in- 
ward expenses 
as  general 


Discharging 
cargfo. 


But  it  does  not  follow  because  his  intentions  are  examinable 
to  this  extent,  that  everything  which  the  captain  intended  in  his  own 
mind  to  do  after  common  safety  should  have  been  attained,  also 
ought  to  be  chargeable  to  general  average.  Intentions  which  go 
beyond  Avhat  is  needed  for  common  salvation  only  show  that,  in 
addition  to  intending  that  which  Avas  a  general  average  sacrifice, 
it  was  intended  further  to  do  something  which  was  not  a  general 
average,  nor  directly  caused  by  one.  On  such  a  ground  repairs  of 
the  ship  in  port  ought  themselves  to  be  included,  for  the  captain 
probably  intended  these:  though  he  intended  them  as  a  means  not 
of  saving  the  cargo,  but  of  earning  his  own  freight.  In  my  opinion 
the  two  tests  which  I  have  enunciated  cannot  be  qualified  or  ex- 
tended so  as  to  embrace  any  such  considerations. 

"  The  next  step  is  to  apply  these  two  tests  to  the  case  before 
lis,  the  damage  which  the  vessel  here  received,  and  which  compelled 
her  to  put  into  a  port  of  refuge,  being  a  particular  average  loss. 
And  first,  as  to  the  expenses  of  putting  into  port.  Two  views  may 
theoretically  be  taken  of  the  act  of  putting  into  a  port  in  a  case  like 
the  present,  though  such  expenses  are  now  universally  accepted  as 
general  average  charges.  These  exj)euses  might  conceivably  be  con- 
sidered as  an  exception  to  the  general  law,  in  virtue  of  which 
exception,  though  the  bearing  up  for  port  was  not  a  general  average 
act  of  sacrifice  in  itself,  its  expenses  are,  for  the  sake  of  public 
policy,  universally  recognized  as  a  subject-matter  of  contribution. 
The  other  and  more  general  view  is,  that  the  bearing  up  for  a  port 
is  to  bo  treated  as  an  act  of  general  average  sacrifice,  because  it  is 
undertaken  as  a  rule  in  the  hour  of  danger  for  the  common  safety 
of  ship  and  cargo.  (Benecke,  p.  192.)  For  the  purpose  of  the 
present  argument,  I  will  assume  that  the  latter  view,  which  was 
pressed  upon  us  by  the  respondents'  counsel,  is  the  more  correct. 
We  come  then  to  the  unloading-  of  cargo  Avhen  the  port  of  refuge 
has  been  reached.  In  practice,  it  has  in  recent  times  become  common 
to  carry  these  uxdoadiug  expenses  to  general  average,  both  where 
the  repairs  of  the  vessel  have  been  rendered  necessary  by  a  general 
average  act,  and  Avhere  they  are  rendered  necessary  by  a  particular 
average  loss.  Nor  is  it  necessary  to  discuss  a  practice  which  may 
have  become  inveterate  and  Avhich  is  found  adequate.  Still,  if  strict 
theory  were  to  be  in  each  case  relied  upon,  such  unloading  ought, 
as  it  seems  to  me,  to  be  dealt  with  specifically  in  every  instance  by 
applying  to  it  the  two  tests  I  have  named.  If  necessary  for  the 
common  preservation  of  both  ship  and  cargo,  the  unloading  will 


SECT.  XLVIII.]       SVENDSEN  V.  WALLACE,  IN  APPEAL.  ^41 

be  in  itself  a  general  average  sacrifice :  see  Tltie  Copenhagen  (n) . 
If  not  so  necessary,  it  will  not  in  itself  amount  to  a  general  average 
sacrifice  at  all,  but  it  may  nevertlieless  be  x^roperly  included  as  a 
subject-matter  of  contribution  whenever  the  expenditure  is  directly 
caused  by  some  antecedent  act  of  general  average  sacrifice. 

"It  has  been  maintained  by  some  that  the  unloading,  which  is  Deadlock 
effected  to  enable  the  shij)  to  be  repaired  after  a  particular  average  rejected, 
loss,  may  properly  be  treated  as  an  act  done  for  the  common  safety 
of  ship  and  cargo,  on  the  ground  that  if  the  cargo  were  not  unloaded, 
ship  and  cargo  would  both  be  locked  up  indefinitely,  and  the  voyage 
placed  permanently  in  suspension.  Eeserving  to  oneself  the  right  to 
consider  any  special  circumstances  arising  in  other  cases  from  the 
character  of  the  cargo,  or  otherwise,  that  might  render  unloading 
necessary  for  the  preservation  of  both  cargo  and  ship  within  the 
meaning  of  such  test,  I  am  unable  to  adopt  the  theoretical  view 
that  unloading  becomes  an  act  of  sacrifice  simply  because  it  releases 
cargo  and  ship  from  the  deadlock  that  would  otherwise  ensue. 
Physical  safety  has  been  attained,  and  it  appears  to  me  to  be  the 
duty  of  the  shipowner,  under  his  contract  of  affreightment,  either 
to  proceed  with  his  voyage  or  to  land  his  cargo,  unless  it  is  to  be 
transhipped  direct.  In  the  case  of  Plummer  v.  Wildman(o),  the 
unloading  of  the  cargo,  which  was  necessary  for  the  repairs,  was 
charged  to  general  average,  but  in  that  case  the  repairs,  owing 
to  an  antecedent  sacrifice  which  necessitated  them,  were  themselves 
held  to  be  general  average.  In  the  case  of  Hall  v.  Janso7i(p), 
where  the  unloading  was  spoken  of  as  chargeable  to  general  average, 
the  question  at  issue  in  the  action  was  as  to  the  liability  to  contri- 
bute not  of  cargo  but  of  freight.  In  the  present  case  the  unloading 
expenses  have  been  by  common  consent,  and  in  conformity  with  a 
very  common  practice,  dealt  with  as  the  subject  of  general  average 
contribution,  and  it  is  therefore  unnecessary  to  decide  what  would 
be  in  other  cases  the  law  on  the  point. 

"  The  goods  having  been  landed,  there  is  an  end  of  all  danger  Warehousing 
common  to  ship  and  cargo.     The  contest  between  the  parties  in  the  '^  ^.rges. 
present  instance  turns  wholly  on  items  of  expenditure  subsequently 
incurred.     These  cannot  be  brought  into  general  average  on  the 
ground  that  they  are  general  average  sacrifices  in  themselves,  for 
the  hour  of  danger  and  of  sacrifice  is  over.     They  can  only  become 

(n)  (1799),  1  C.  Rob.  289.  (p)  (1855),    4   E.    &   B.    500;    24 

(o)  (1815),  3  M.  &  S.  482.  L.  J.  (Q.  B.)  97. 

L.  R 


-■^^  PORT  OF  REFUGE  EXPENSES.  [CHAP.  V. 

so  chargeable  if  it  can  be  shown  that  they  are  part  of  the  loss  which 
some  antecedent  act  of  sacrifice  entails.  The  first  item  in  controversy 
which  we  are  asked  to  consider  relates  to  the  warehousing  of  the 
cargo.  Now,  prima  facie  warehousing  the  cargo  is  a  charge  that 
ought  to  bo  borne  by  the  cargo,  which  benefits  exclusively  by  it.  It 
may,  conceivably,  in  some  cases  have  been  rendered  necessary  by  an 
antecedent  sacrifice,  so  as  to  fall  within  the  definition  of  the  loss 
caused  thereby.  But  the  only  antecedent  sacrifice  in  the  present 
case  was  the  putting  into  port  for  refuge,  and  it  is  difficult  to  see 
how,  as  between  ship  and  cargo,  the  warehousing  of  the  cargo  was 
caused  by  the  mere  putting  into  port.  Tlie  defendants  have  admitted 
their  liability  to  bear  the  charge  in  full.  In  my  opinion  there  is 
no  reason  to  treat  the  warehousing  in  the  present  case  as  other 
than  a  charge  on  cargo. 
Reloading.  "We  come  next  to  the  reloading.     Eeloading  is  not  an  act  of 

sacrifice,  for  long  before  it  occurs  both  ship  and  cargo  are  safe.  Is 
it  then  caused  by  any  act  of  sacrifice,  or  is  it  part  of  the  loss,  in  other 
words,  which  an  antecedent  act  of  sacrifice  involves?  Where,  for 
example,  a  ship  has  cut  away  a  mast  and  has  put  into  port  to  repair 
the  damage  so  caused,  and  been  compelled,  in  order  to  repair  this 
special  damage,  to  unload  and  to  reload  the  cargo,  it  may  follow, 
according  to  the  decision  in  Atwood  v.  Sellar  (q),  that  such  expenses 
Not  caused  liy  are  all  part  of  the  loss  involved  in  the  original  sacrifice.  But  in 
port.  °  ^^  °  the  present  instance  the  only  sacrifice  has  been  the  putting  into 
port,  and  the  reloading  expenses  are  not  part  of  the  loss  which 
putting  into  port  has  caused,  but  a  loss  caused  by  the  captain's 
decision  to  repair  his  ship  and  to  unload  and  reload  the  cargo  for 
that  purpose  (r).  The  charges  of  reloading  in  such  a  case  ought 
in  principle  to  fall  upon  the  freight,  or  else  upon  the  freight  and 
the  ship  together  if  the  two  interests  are  severed. 
Charges  of  "  I  come  next  to  the  charges  outward,  and  this  seems  to  me  to 

to'^sea.  "^°  raise  a  more  difficult  question.  Expenditure  of  this  description  is  not 
in  itself  a  general  average  sacrifice,  but  may  it  not  be  said  that  it 
has  been  caused  by  one,  on  the  ground  that  a  ship  which  goes  into 
port  will  have  to  come  out  again,  and  that  the  former  operation 
directly  causes  the  latter?     If  strict  theory  is  to  be  applied,  there 

(q)  4  Q.   B,  D.  342;  5   Q.  B.  D.  that  the  shipowner  is  bound,  if  he 

286.  can,  to  repair  his  ship  and  complete 

(r)  This  appnrently  implies  the  re-  his  contract.    {Seej>ost,  pp.  272 — 275, 

jection  of  the  theory  maintained  at  n.  (»).) 
so  much  length  by  Cotkburn,  C.  J., 


SECT.  XLVIII.]       SVENDSEN  V.  WALLACE,  IN  APPEAL.  '^43 

mijrht  seem  to  be  a  difPerence  between  the  cases  in  which  the  vessel 

has  done  nothing-  in  the  port  of  refuge  between  availing  herself 

of  a  temporary  shelter,  and  the  cases  where  she  puts  in  in  order 

to  repair  damage,  and  because  it  was  not  safe  for  her  to  continue 

her  voyage  without  such  repairs.     In  the  former  case,  where  shelter  Outward 

alone  is  sought,  the  vessel  might  plausibly  be  said  to  come  out,  timef^eneral' 

because  she  previously  went  in.     In  the  latter  case,  where  she  puts  average. 

in  for  repairs,  the  proximate  cause  of  her  coming  out  is  not  that  she 

put  in — for  she  could  not  have  resumed  her  voyage  had  not  the  neces-  MUcr,  if 

sary  repairs  been  effected  upon  her  while  in  harbour — but  that  the  «hip  repaired. 

master  when  in  harbour  decided,  in  the  discharge  of  his  duty  and 

in  the  interest  of  his  owners,  on  repairing  the  ship,  reloading  the 

cargo,  and  carrying  on  the  voyage.     The  outward  expenses  ought, 

therefore,  as  it  seems  to  me,  in  the  present  instance,  to  fall  on 

freight  "(s). 

Proceeding  in  the  next  place  to  consider  the  autho- 
rities, the  learned  judge  arrived  at  the  conclusion  that 
they  were  none  of  them  inconsistent  with  the  conclusion 
he  had  arrived  at. 

Baggallay,  L.  J.,  dissented  from  both  his  learned  Baggaiiay, 
brethren.  He  rested  his  argument  exclusively  on  the 
ground  that  the  decision  in  Atwood  v.  Sellar,  whi(3li  he 
considered  to  be  right,  obliged  them  in  consistency  to 
decide  the  present  case  in  the  same  way.  When  it  was 
conceded  that  the  going  into  port  to  repair  was  an  act  of 
sacrifice  for  the  common  good,  the  expenses  of  discharg- 
ing cargo  in  order  to  repair,  and  of  warehousing  and 
reloading  it,  and  putting  to  sea  again,  were  just  as  much, 
or  just  as  little,  parts  or  consequences  of  the  going  in, 
whether  the  original  inducement  to  go  in  had  been  a 
sacrifice  or  an  accident.  "  In  each  case  the  putting  into 
port  /or  the  safety  of  ship  and  cargo  was  an  act  of  saciifice, 
giving  rise  to  claims  for  general  average  contribution ; 
in  the  case  of  A.  this  act  of  sacrifice  followed,  or  was  a 


(s)  Svtndmi  y.  Wallace  (1884),  13  Q.  B.  D.  69,  at  p.  86. 

r2 


244 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


Svendseti  v. 
Wallace  in 
House  of 
Liords. 


Lord  Blacl- 
httrn. 

Reconsidera- 
tion of  facts. 


continuation  of,  the  original  act  of  sacrifice,  whilst  in 
the  case  of  B.  it  was  itself  the  original  act  of  sacrifice ; 
in  each  case  the  proximate  cause  of  the  extraordinary 
expenses  incurred  was  the  putting  into  the  port  of 
refuge  "(^). 

The  case  was  carried  up  to  the  House  of  Lords. 
There  judgment  was  given  by  Lords  Blackburn,  Watson, 
and  Fitzgerald  (?«).  Their  lordships  confirmed  the  deci- 
sion of  the  majority  of  the  Court  of  Appeal. 

Lord  Blackburn  began  his  judgment  by  setting  forth,  the  facts, 
and  in  doing  so  took  the  opportunity  of  pointing  out  that  it  had 
been  up  to  that  point  taken  for  granted,  in  the  arguments  on  both 
sides,  and  in  all  the  judgments,  that  the  cargo  was  discharged  in 
order  to  repair  the  ship,  whereas  the  documents  showed  that  Tine 
Olaf  Trygvasori's  cargo  was  discharged  for  its  own  preservation. 
This  fact,  the  learned  Law  Lord  considered,  was  material,  and  one 
which  their  lordships  ought  to  have  power  to  determine  in  some 
manner,  "unless,"  he  said,  "it  could  be  laid  down  as  a  general 
proposition  of  law,  either  that  no  expenses  of  warehousing  the  cargo 
and  afterwards  re-shipping  it  in  a  port  of  refuge  can  ever  be 
general  average  expenses,  or  that  they  must  always  be  so.  I  am 
not  prepared  to  assent  to  either  proposition.  Any  state  may,  by  its 
legislature,  enact  that  within  its  territories  the  law  shall  be  either 
way.  Judging  merely  from  the  language  of  their  codes  (which, 
however,  is  often  apt  to  mislead,  unless  construed  with  reference 
to  their  law  and  xisage),  I  should  say  that  some  foreign  nations 
have  enacted  in  opposite  ways.  There  is,  however,  no  English  en- 
actment on  the  subject."  The  learned  Law  Lord,  therefore,  pro- 
posed to  deal  with  this  case  as  if  a  power  were  given  him  to  look 
at  the  ship's  papers  and,  if  he  should  think  fit,  draw  inferences 
from  them  as  an  average  adjuster  would  do.  The  learned  lord 
then  dealt  with  the  case  of  Simonds  v.  White  (x),  and,  diverging 
to  the  question  of  custom,  which  was  not  strictly  before  the  court, 
said  that  in  Wilson  v.  Bank  of  Victoria  (y),  it  was  intimated  that 
a  custom  tacitly  making  it  part  of  the  contract  that  any  particular 
principle  should  be  applied  might  alter  the  whole.     "I  think,"  he 


(t)  Svendsen  v.  Wallace  (1884),   13 
Q.  B.  D.  69,  at  p.  82. 
{u)  (1885),  10  App.  Cas.  404. 


(a;)  (1824),  2  B.  &  C.  811. 
ly)  (1867),  L.  E.  2  Q.  B.  203. 


SECT.  XLVIII.]       SVENDSEN  V.  WALLACE,   HOUSE  OF  LORDS.  ~*i'5 

said,  "  that  unless  it  was  proved  that  there  was  such  a  custom  as 
to  be  tacitly  incorporated,  it  could  have  no  such  effect.  And  I  have 
no  doubt  that  the  issue,  which  has  not  been  brought  here  by  appeal, 
was  rightly  decided.  I  think,  however,  there  is  much  force  in  the 
concluding-  observations  of  Manisty,  J.,  in  Ativood  v.  Sellar{z).  Observation.s 
I  agree  with  him,  at  least  thus  far,  that  a  general  practice,  long  ot^^cljusters 
continued  among-st  English  adjusters,  affords  strong  ground  for 
thinking  that  the  practice  is  one  which  is  not,  in  general,  incon- 
venient, and  that  it  throws  a  considerable  onus  on  those  who  impugn 
it  to  show  that  the  particular  circumstances  are  such  as  to  render 
an  adherence  to  the  practice  in  that  case  against  principle." 

The  learned  Law  Lord,  who  certainly  had  made  himself  more  That  too 
familiar  with  the  figures  of  the  case  than  any  of  those  who  had  ^era^aid  into 
gone  before  him,  then  in  a  series  of  calculations  proceeded  to  point  •^oui't.     , 
out  that  the  defendants,  having  paid  into  court  a  sum  based  on  their 
liabilitjs  according    to    an    adjustment    which    had     charged     the 
charterers  with  a  part  of  the  cost  of  reloading-  in  proportion  to 
the  part  of  freight  prepaid,  had  to  that  extent  paid  too  much.     "If 
the  450Z.,  which  is  the  cost  of  reshipping,  is  properly  charged  to 
freight,  the  defendants  are  not  liable  to  pay  any  portion  of  it." 
The  defendants  having  thus  paid  too  much,  and  by  a  larger  amount 
than  the  whole  sum  in  dispute  affected  by  the  outward  pilotage  and 
port  charges,  the  learned  judge  concluded  it  was  unnecessary  for 
him  to  consider  the  question  of  liability  for  these  items. 

Up  to  this  point  not  a  word  had  been  said  bearing  on  the 
merits  of  the  question  of  principle  before  the  court.  From  this 
point  it  will,  perhaps,  be  more  satisfactory  if  I  give  the  judgment 
verbatim  as  it  is  reported:  — 

"  I  do  not  think  it  necessary  to  inquire  what  would  be  the  proper  (Question  at 
course  if  the  seeking-  the  port  of  refuge  had  been  solely  for  the 
pm-pose  of  doing  repairs,  the  cargo  not  being  in  any  danger.  Such 
a  case  may  perhaps  sometimes,  though  rarely,  occur.  Nor  do  I 
think  it  necessary  to  inquire  what  would  be  the  proper  course  if 
the  ship  and  cargo  were  both  safe  in  the  harbour  of  refuge,  and 
the  unloading  of  the  cargo  was  entirely  for  the  purpose  of  facili- 
tating the  repairs.  Such  a  case  seems  more  likel}^  to  happen  than 
that  first  supposed.  I  think,  on  examining  the  two  adjustments, 
and  exercising  the  power  which  I  have  assumed  to  be  given,  there 
can  be  no  doubt  that  the  cargo  on  board  the  ship,  leaking  to  the 

(2)  (1879),  4  Q.  B.  D.  352. 


issue. 


24G 


PORT  OF  EEFUGE  EXPENSES. 


[chap.  V» 


Reloading 
chargeable 
to  freight. 


Rosetto  V. 
Gurneij. 


Facts  of  ca.-o 
before  him 
considered . 


extent  which  she  did,  was  not  safe  even  in  harbour  until  the  ship 
was  so  far  lightened  that  she  could  be  taken  into  dry  dock.  Should 
the  expense  of  reloading-  her,  after  the  repairs  were  made,  be  charged 
to  freight,  the  goods  having  been  taken  out  under  such  circum- 
stances ?    I  think  it  should  (a) . 

"I  am  afraid  I  have  not  understood  the  reasoning  on  which 
Cockburn,  C.  J.,  in  his  judgment  in  Atwood  v.  Sellar  (6),  comes  to 
a  contrary  conclusion.     If  I  have,  I  must  express  dissent  from  it. 

'■'  The  ordinary  contract  between  shipowner  and  merchant  is  that 
the  goods  shall  be  carried  to  their  destination,  and  shall  there  be 
delivered,  imless  prevented  by  the  excepted  perils.  And  this  gene- 
rally should  be  done  in  the  original  ship.  Whenever  the  ship  is 
disabled  it  must,  in  order  literally  to  fulfil  this  contract,  be  necessary 
to  repair  the  ship  so  far  as  to  make  her  fit  to  carry  on  the  cargo, 
and  if  any  part  of  the  cargo  has  been  taken  out  to  reship  it. 

"Rosetto  V.  Gurney  (c)  was  a  case  between  the  owners  of  corn 
insured  from  Odessa  to  Liverpool  and  their  underwriters.  The  plain- 
tiffs claimed  for  a  total  loss,  and  the  underwriters  paid  money  into 
court.  The  cargo  was  at  Cork  in  a  very  damaged  state,  but  by 
great  skill,  and  at  considerable  cost,  was  prevented  from  turning 
into  manure,  and  was  sold  at  Cork,  a  considerable  part  of  it  being 
still  corn.  The  verdict  was  entered  for  a  total  loss.  A  rule  for  a 
new  trial  was  obtained  on  various  grounds;  one,  on  which  it  was 
made  absolute,  was  that  the  judge  had  not  properly  directed  the  jury 
as  to  the  effect  of  the  extra  cost  of  conveyance  in  a  new  bottom  from 
Cork,  the  port  of  distress  where  the  wheat  was  sold,  to  Liverpool, 
the  port  of  destination.  The  court  say  as  to  this,  'If  the  voyage 
is  completed  in  the  original  ship,  it  is  completed  upon  the  original 
contract,  and  no  additional  freight  is  incurred.  If  the  master  tran- 
ships because  the  original  ship  is  irreparably  damaged,  without 
considering  whether  he  is  hound  to  tranship  or  merely  at  liberty 
to  do  so,  it  is  clear  that  he  tranships  to  earn  his  full  freight;  and  so 
the  delivery  takes  place  upon  the  original  contract.' 

"  There  never  was  in  the  present  case  any  question  as  to  The 
Olaf  Trygvason  being  irreparably  damaged;  but  she  was  so  far 
damaged  that  it  was  certain  there  would  be  some  delay  (it  turned 
out  to  be  about  six  weeks)  before  The  Olaf  Trygvason  was  in  a  fit 


(a)  A  fortiori,  in  the  second  case  to  the   ship,    the   cost   of   reloading 

put  by  Lord  Blackburn,  viz.,  where  cannot  be  general  average, 

the  unloading  is  solely  for  the  pur-  {h)  (1879),  4  Q.  B.  D.  354. 

pose  of  repairing  particular  average  (c)  (1851),  11  C.  B.  167,  188. 


SECT.  XLVIII.]       SVENDSEN  V.  WALLACE,  HOUSE  OF  LORDS.  247 

state  to  carry  the  goods  on  to  Liverpool.  And  if  there  had  been 
a  good  ship  at  St.  Louis  willing  to  carry  the  goods  to  their  desti- 
nation for  less  than  the  agreed  freight  from  Rangoon,  it  might 
have  been  for  the  benefit  of  all  that  the  goods  should  be  shipped 
on  that  vessel  at  once,  carried  on,  and  delivered  to  the  consignees 
without  delay.  Such  was  the  course  pursued  in  ShiptoJi  v.  Thorn-  smpionv. 
ton  (d),  where  the  original  shipment  was  from  Singapore  to  London 
.  in  The  James  Scott.  She  put  into  Batavia  in  distress,  and  there 
the  goods  were  put  into  The  Mountaineer  and  The  Sesostris,  carried 
to  London,  and  there  delivered  to  the  owner  of  The  James  Scott, 
at  a  cost  less  than  the  amount  of  freight  which  he  would  have 
earned  had  the  goods  been  carried  on  in  The  James  Scott.  He 
delivered  them  to  the  consignee,  who  produced  the  original  bill  of 
lading  by  The  James  Scott.  The  consignee  refused  to  pay  freight 
at  the  rate  in  the  bill  of  lading  of  The  James  Scott  from  Singapore 
to  London,  though  he  paid  that  from  Batavia  agreed  on  in  the  bills 
of  lading  of  The  Mountaineer  and  The  Sesostris.  The  decision 
was  that,  whether  or  not  the  captain  was  bound  to  tranship,  he  was  at 
liberty  to  do  so,  and  having  done  so  had  earned  his  full  freight; 
the  expense  which  he  had  incurred  to  earn  it  being  certainly  not 
general  average,  but  I  think  a  particular  average  paid  by  the  ship- 
owner to  earn  his  freight.  My  conclusion  is,  that  if,  instead  of 
transhipping,  the  captain  waits  till  the  original  ship  is  repaired, 
and  then  re-ships  in  that  original  ship,  the  cost  of  so  doing  should 
not  be  general  average,  but  particular  average  to  earn  the  full 
freight.  Cockburn,  C.  J.,  seems  to  think  that  in  all  cases  where 
the  ship  is  disabled,  whether  she  can  be  repaired  or  not,  the  original 
contract  is  dissolved  and  a  new  one  formed  by  law.  This  seems  to 
me  in  direct  conflict  with  the  two  decisions  I  have  just  cited;  and  even 
if  it  were  so,  I  think  it  is  somewhat  in  the  nature  of  a  petitio 
principii  to  say  that  one  of  the  terms  of  the  new  contract  should 
be  that  the  cost  of  transhipment  or  reshipmeut,  as  the  case  may 
be,  should  be  general  average. 

"  The  judgment,  however,  of  the  Court  of  Appeal,  delivered  Effect  of 

by  Thesiger,  L.  J.,  does  not  proceed  on  this  ground.     I  have  some   ■;^^^^'ood y. 

ScUnr. 
difficulty,  after  reading  the  statement  as  to  the  grounds  on  which 

the  Court  of  Appeal  proceeded,  in  saying  on  what  ground  it  does 

proceed. 

'  The  special  case  in  AtvJood  v.  Sellar  (e),  was  express  that  the 

{d)  (1838),  9  A.  &  E.  314.  (e)  (1879),  4  Q.  B.  D.  342. 


248  POET  OF  REFUGE  EXPENSES.        [CHAP.  V. 

ship  was  injured  by  a  voluntary  sacrifice,  and  was  thereby  com- 
pelled to  put  into  Charleston  to  repair  the  said  damage.  It  is  not 
expressly  said,  either  way,  whether  the  cargo  was  in  any  danger. 
Baggallay,  L.  J.,  who  was  a  party  to  that  judgment,  said  that  it 
was  decided  on  the  ground  that  putting  into  the  port  of  refuge 
was  necessary  for  the  safety  of  both  ship  and  cargo,  and  that  he, 
at  least,  thought  that  it  was  immaterial  what  was  the  cause  of  that 
necessity.  Yet  I  think  there  is  much  reason  for  doubting  if  Thesiger, 
L.  J.,  quite  agreed  in  this.  He  says,  '  The  principle  which  underlies 
the  whole  law  of  general  average  contribution  is  that  the  whole 
loss,  immediate  and  consequential,  caused  by  a  sacrifice  for  the 
benefit  of  cargo,  ship  and  freight,  should  be  borne  by  all.  This 
principle  is  in  the  abstract  conceded  by  counsel  for  the  defendants, 
and  its  application  to  the  present  case  is  admitted  to  the  extent 
of  allowing  the  expenses  of  unloading  the  goods,  for  the  purpose 
of  doing  the  necessary  repairs  to  enable  it  to  proceed  on  the  voyage, 
to  be  the  subject  of  general  average  contribution,  but  they  at- 
tempt to  distinguish  such  expenses  from  those  of  warehousing  and 
reloading  the  cargo,  and  of  outward  port  and  pilotage  charges,  by 
the  sviggestion  that  the  common  danger  to  the  whole  adventure  is 
at  an  end  when  the  goods  are  unloaded,  and  that  general  average 
ceases  at  the  point  of  time  when  the  common  danger  ceases.'  This 
is,  I  think,  a  fair  statement  of  the  argument  of  the  respondents' 
counsel  in  the  present  case.  Afterwards  he  says,  'The  going  into 
port,  the  unloading,  warehousing,  and  reloading,  are  at  all  events 
parts  of  one  act  or  operation  contemplated,  resolved  upon,  and  carried 
through  for  the  common  safety  and  benefit,  and  properly  to  be  re- 
garded as  continuous.'  This  was  much  relied  on  by  the  counsel  for 
the  respondents.  If  I  thought  it  was  the  state  of  the  case  before  the 
House,  I  should  consider  whether  in  such  a  case  it  might  not  fairly 
be  argued  that  the  whole  of  these  operations  were  to  be  considered 
as  parts  of  the  expense  of  repairing  the  damage ;  and  therefore,  in  a 
case  where  the  cau^e  of  the  damage  was  such  that  the  expense  of 
repairing  it  ought  to  be  borne  by  all,  as  was  the  case  in  At  wood  v. 
Sellar(J),  to  be  borne  by  all;  but  that  in  a  case  where  the  cause 
of  the  damage  was  such  that  the  expense  of  repairing  it  ought 
to  be  borne  by  the  ship  only,  which  is  the  present  case,  to  be  borne 
by  the  ship  only.  But  having  come  to  the  conclusion  that  such  is  not 
the  state  of  the  case  before  the  House,  I  do  not  enter  into  this 
inquiry. 

(/)  (1«"9),  4  Q.  B.  D.  342. 


SECT.  XLIX.]  CONCLUSION.  249 

"  Having-  come  to  the  conclusion  that,  under  the  circumstances  No  opinion 
of  this  case,  the  expenses  of  reloading-,  &c.  should  not  be  placed  to  f^t^ard  *° 
general  average,  and  that  being  enough,  if  your  lordships  agree  with  Port  charges. 
me,  to  show  that  the  respondents  have  paid  more  than  enough,  it 
is  not  necessary  to  consider  whether  the  smaller  sum  of  20Z.  ouo-ht 
also  to  have  been  charged  to  ship  or  freight,  and  not  to  general 
average.    I  agree  with  Bowen,  L.  J.,  in  what  he  says  at  page  90  (g), 
that  that  is  a  more  difficult  question  than  the  other.     And  as  the 
amount  is  not  sufficient  to  turn  the  scale,  it  is  not  necessary  to 
decide  it.     I  should  think  it  seldom  involved  any  eum  so  great  as  to 
be  of  practical  importance,  and  I  prefer  leaving  it  undecided." 

Lords  Watson  and  Fitzgerald  concurred,  but  gave 
no  reasons. 

Conclusion. 

§  49.  It  onl}^  remains  to  sum  up,  as  briefly  as  pos- 
sible, the  results  of  this  litigation. 

It  is,  in  the  first  place,  to  be  pointed  out,  that  the 
action  of  the  House  of  Lords  in  abstaining  from  pro- 
nouncing an  opinion  on  some  of  the  questions  brought 
before  them,  as  being  difficult,  and  as  representing  an 
amount  insufficient  to  cover  an  over-payment  made  bv 
the  defendants  on  a  totally  different  ground,  presumably 
leaves  the  question,  or  some  part  of  it,  open  for  recon- 
sideration hereafter.     It  may  be  many  years,  however, 
before  the  subject  is  again  touched  in  the  way  of  litiga- 
tion.    A  twofold  task,   therefore,   here   lies   before   us. 
We  are  to    consider,   first,  for   practical   purposes,   the 
action  taken  by  adjusters  on  the  law  as  it  stands;  and 
secondly,  what  theoretical  principle  or  principles  can  be 
extracted  from  these  decisions  as  likely  to  govern,  more 
or   less,   similar  cases  when    again   brought  before  the 
courts  of  law. 

With   regard    to   the   first  of   these  questions,  the 

(5-)  (1884),  13  Q.  B.  D.  69,  at  p.  90. 


250 


PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

Association  of  Average  Adjusters  has  passed  the  following 
resolutions  : — 

Son/re-  ''  '^^^*  ^^^u  a  ship  puts  into  a  port  of  refuge  in 

o?OTlctLr^^^  consequence    of   damage   which   is    itself    the 

subject  of  general  average,  and  sails  thence 
with  her  original  cargo  or  a  part  of  it,  the 
outward  as  well  as  the  inward  port  charges 
shall  be  treated  as  general  average  ;  and  when 
cargo  is  discharged  for  the  purpose  of  repairing 
such  damage,  the  w^arehouse-rent  and  reloading 
of  the  same  shall,  as  well  as  the  discharge,  be 
treated  as  general  average.  (See  Atwood  v. 
Sellar.y 

"  That  when  a  ship  puts  into  a  port  of  refuge  in 
consequence  of  damage  which  is  itself  the 
subject  of  particular  average  (or  not  of  general 
average),  and  when  the  cargo  has  been  dis- 
charged in  consequence  of  such  damage,  the 
inward  port  charges  and  the  cost  of  discharging 
the  cargo  shall  be  general  average,  the  ware- 
house-rent of  cargo  shall  be  a  particular  charge 
on  cargo,  and  the  cost  of  reloading  and  out- 
ward port  charges  shall  be  a  particular  charge 
on  freight.     [See  Svcndsen  y.  Wallace)  ^^  [h). 

"  That  when  the  cargo  is  discharged  for  the  purpose 
of  repairing,  re-conditioning,  or  diminishing 
damage  to  ship  or  cargo  which  is  itself  the 
subject  of  general  average,  the  cost  of  storage 
on  it  and  of  reloading  it  shall  be  treated  as 
general  average,  equally  with  the  cost  of  dis- 
charging it." 

(h)  See  also  in  Appendix  Z,  No.  20      the  incidence  of  the  expenses  at  the 
of  the  Rules  of  Practice,  in  which      port  of  refuge  is  "worked  out  in  detail. 


SECT.  XLIX.] 


CONCLUSION. 


251 


"  That  DO  distinction  be  drawn,  in  practice,  between 
discharging   cargo   for  the   common  safety  of 
ship    and    cargo,    and    discharging   it   for   the 
purpose    of  effecting  at  an  intermediate  port 
or  ports   of  refuge  repairs  necessary  for    the 
prosecution  of  the  voyage." 
"  That  whenever  the   cost  of  discharo^inof  car2:o  is 
general  average,  all  loss  or  damage  necessarily 
arising  to  cargo  therefrom  shall  be  allowed  in 
general  average." 
^'  That  damage  necessarily  done  to  cargo  by  dis- 
charging, storing,  and  reloading  it,  be  treated 
as  general  average  when,  and  only  when,  the 
cost    of     those    measures    respectively    is    so 
treated  "  (i). 
Coming  now  to  the  second  question  above  proposed 
— that  which  has  reference  to  the  permanent  results  likely 
to  flow  from  these  important  decisions — I   venture    to 
offer  the  following  observations  : — 

The  Master  of  the  Rolls  has  given  a  solution  of  a 
difficulty  which  had  heretofore  been  strongly  felt  by, 
I  venture  to  say,  every  one  who  had  of  late  years 
attempted  to  justify  the  former  custom  of  Lloyd's  on 
theoretical  principles — an  inconsistency  which  had  been 
pressed  upon  them  by  the  assailants  of  that  custom  with 
very  great  effect.  How,  it  used  to  be  asked,  can  you 
justify  your  treating  as  general  average  the  cost  of  dis- 
charging the  cargo,  when  the  ship  has  gone  into  port  to 


(j)  See  Hamel  v.  P.  &  0.  Steam 
Navigation  Co.,  [1908]  2  K.  B.  29S, 
where  the  ship  got  into  difficulties 
immediately  after  leaving  her  berth, 
and  sustained  some  damage,  in  con- 
sequence of  which  she  returned  to 
her  berth,  but  Lord  Alverstone.  C.  J., 


held  that  the  cargo  was  at  no  time  in 
danger,  and,  therefore,  that  there 
was  no  general  average  act,  and  that 
the  cargo-owner  was  not  entitled  to 
contribution  for  damage  done  to  the 
cargo,  in  discharging  it  to  enable  the 
ship  to  be  repaired. 


262  PORT  OF  REFUGE  EXPENSES.  [CHAP.  V. 

repair  accidental  damage,  and  the  cargo  is  discharged 
not  for  the  common  safety,  nor,  indeed,  for  the  safety 
either  of  cargo  or  ship,  but  merely  because  the  ship 
cannot  be  repaired  till  the  cargo  is  out  of  it  ?  How  can 
you  justify  this  except  by  arguments  which  contradict, 
or,  at  least,  hopelessly  weaken,  the  arguments  by  which 
you  support  the  remainder  of  your  custom  ?  To  this 
there  had,  heretofore,  been  no  valid  or  intelligible  reply. 
Lord  Esher  has  now,  for  the  first  time,  furnished  one. 
The  sacrifice,  or  general  average  act,  his  lordship  points 
out,  consists,  not  simply  in  going  into  port,  but  in  "  going 
into  port  to  repair";  and  this  is  an  ellij^tical  expression 
for  ' '  going  in  so  as  to  be  in  a  position  which  will  enable 
her  to  be  repaired "  (/r).  The  landing  of  the  cargo, 
then,  in  the  case  supposed,  is  rightly  treated  as  general 
average,  because  it  is  j^art  of  the  act  of  going  into 
port  to  repair  (A").  This  solution  of  our  difficulty  is, 
I  venture  to  think,  the  true  one,  and  that  which  will 
permanently  liold  its  ground,  as  being  proof  against 
assault  by  reasoning.  The  cost  of  discharging  is,  in  this 
case,  not  general  average  on  its  own  merits,  but  because 
it  forms  part  of  another  act ;  or,  more  precisely,  because 
it  is  part  of  the  expense  which  naturally  follows  from 
the  general  average  act,  and  the  incurring  of  which 
must,  therefore,  be  taken  to  have  been  foreseen  when 
that  act  was  resolved  on  (/). 

{k)  Ante,  p.  236.  average  act.  (Law  Quarterly  Review, 

[l]  Ante,  §  5.     The  view  that  the  July,  1892.)     This  criticism  seems  to 

general  average  act  is  "going  into  agree  with  the  passage  in  the  judg- 

port  for  repairs"'  has  been  criticised  ment  of  Bowen,  L.  J.,  in  Svendsen  v. 

by  Mr.  Carver,  on  the  ground  that  Wallace,  cited  ante,  pp.  239,  240,  in 

the  act  of  putting  into  port  is  only  a  which  he  denies  that  port  of  refuge 

general  average  act   so  far  as  it  is  expenses  following  upon  a  particular 

done  to  secure  the  common  safety,  average  loss  can  be  allowed  on  the 

and  that  if  it  is  done  with  any  further  gi'ound  that  they  were  contemplated 

object,  then,  so  far,  it  is  not  a  general  by  the  captain  at  the  time  when  he 


SECT.  XLIX.]  CONCLUSION.  .  ^53 

But,  if  so,  was  not  the  warehousing  and  reloading 
of  the  cargo  equally  a  part  of  the  expense  which  naturally 
follows,  and  must  be  taken  to  have  been  foreseen,  when 
it  was  resolved  to  put  into  port,  and  in  case  of  need  there 
discharge  cargo  ?  It  is  in  a  sense  left  an  open  question 
by  the  courts — certainly  by  the  House  of  Lords — whether 
the  expenses  of  bringing  the  ship  out  of  the  port  of 
refuge  are  not  the  subject  of  general  average,  as  being 
the  natural  and  reasonable  result  of  going  into  the  port 
with  the  intention  of  coming  out  again.  Is  not  the 
expense  of  reloading  the  cargo,  in  precisely  the  same 
sense,  the  natural  and  reasonable  result  of  discharging 
it  in  order  to  repair  the  ship,  with  the  intention  of 
reloading  it  when  the  ship  had  been  repaired  ?  If,  then, 
the  cost  of  discharging,  equally  with  the  cost  of  going 
into  the  port  of  refuge,  is  rightly  admitted  into  general 
average,  because  both  are  parts  of  the  one  act  of  "  going 
in  for  repair  "  ;  and  if  the  true  test  for  following  out 
consequences  of  acts  which  are  to  be  paid  for  by  a  third 
party,  whether  in  tort  or  as  damages,  be,  as  pointed  out 


put  into  port.     "Intentions,"    said  submitted,  on  whether  tlie  measure  is 

the  Lord  Justice,  ' '  which  go  beyond  a    necessary    consequence    of    some 

■what  is  needed  for  common  salvation  general  average  act. 
only  show   that,  in  addition   to  in-  In  Hamel  v.  P.  &  0.  Steam  Nav. 

tending  that   which  was   a  general  Co.,  [190S]  2  K.  B.  298,  Lord  Esher's 

average    sacrifice,    it    was    intended  theory  is  discussed  by  Lord  Alver- 

further  to  do  something  which  was  stone,  C.  J.,  who  suggests  that  the 

not  a  general  average,  nor  directly  late  Master  of  the  Eolls  intended  to 

caused  by  one."     With  Mr.  Carver's  state  "the  principle  that  before  the 

criticism  the  editors  venture  to  agree,  unloading  can  be  treated  as  a  genera 

notwithstanding    the    great    weight  average  act  it  must  be  part  of  the 

that  attaches  to  an  opinion  of  Lord  act  of  putting  into  port  for  repairs  to 

Esher's,    supported   by   the    learned  save   the   whole    adventure   from    a 

author  of  this  work.     Whether  the  peril ;  in  other  words,  there  must  be 

expense  of  any  measure  taken  after  a  general  average  act  to  which  the 

the  ship  and  cargo  have  been  placed  unloading  of  the  cargo  and  the  ex- 

in  safety  is  to  be  contributed  for  in  penses  thereby  incurred  are  neces- 

general  average  must  depend,  it  is  sarily  incident." 


Editors' 
suinmary. 


'■^^^  PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

by  Lord  Esher  himself  in  the  case  of  The  Notting  Hill{m\ 
"  whether  the  damage  complained  of  is  the  natural  and 
reasonable  result  of  the  act,"  it  seems  to  follow  that  the 
cost  of  reloading  and  taking  the  ship  out  of  port,  in  the 
case  supposed,  should  be  treated  in  the  same  way  as  the 
cost  of  discharging  and  taking  the  ship  in. 

This,  however,  is  mere  speculation,  and  in  the 
meantime  we  must  act  on  tlie  law  as  declared  by  the 
courts  until  or  unless  the  question  be  again  brought 
before  them. 

[The  only  point  in  relation  to  port  of  refuge  expenses 
which  the  House  of  Lords  decided  in  Svendsen  v.  Wallace^ 
is,  as  we  have  seen,  that  when  the  ship  puts  into  port  to 
repair  particular  average  damage,  and  it  is  necessary  for 
the  common  safety  to  unload  part  of  the  cargo  before 
doing  the  repairs,  the  cost  of  reloading  should  be  charged 
to  freight.     Ativood  v.  Sellar  has  not  been  overruled  by 
Svendsen  v.  Wallace,  althoug'h  much  of  the  reasonino-  in 
the  judgments  in  Atwood  v.  Sellar  is  opposed  to  the  views 
expressed  in  the  later  case.     It  may  therefore  be   said 
that,  except  on  the  single  point  decided  by  the  House  of 
Lords,  there  is  no  decision  on  tlie  incidence  of  the  various 
expenses  consequent  on   putting  into  a  port  of  refuge, 
W'hich  must  be  regarded  as  final.    The  questions  connected 
with  this  vexed  subject  have  given  rise  to  refined  argu- 
ments,   and  in    discussing   them,   textwriters   have    put 
forward  opinions  which  do  not  agree  in  all  respects  with 
the  existing  rules  of  practice.     Thus  Mr.  Carver  thought 
that  in  all  cases  the  expenses  of  leaving  the  port  of  refuge 
should  be  general  average,  "  since  they  are  the  natural 
and  expected  consequences  of  putting  in  "  ;  also,  that  the 
expense  of  discharging  cargo,  if  only  necessary  for  the 

(to)  (1884),  9  P.  D.  105,  at  p.  113  ;  ante,  p.  40. 


CT.  L.]  DETAILS.  255 

repair  of  the  ship,  should  be  regarded  as  part  of  the  cost 
of  the  repairs.  He  also  expressed  the  view  that,  according 
to  the  judgment  of  the  Court  of  Appeal  in  Svendsen  v. 
Wallace,  the  expenses  of  warehousing  should  always  be 
charged  to  the  cargo,  though  he  said  that  if  the  repairs 
are  general  average,  the  warehousing  charges  should 
perhaps  be  regarded  as  a  general  average  loss  of  the 
cargo-owners  [n).  Again,  the  editors  of  the  latest  editions 
of  Arnould  on  Insurance,  agree  with  Mr.  Carver  as  to  the 
expenses  of  discharging  the  cargo,  and  they  think  that 
the  expenses  of  reloading  and  coming  out  of  port  should 
in  general  be  charged  to  freight  (o).  Meanwhile,  unless 
the  parties  have  agreed  to  be  bound  by  the  York-Antwerp 
Rules,  average  adjusters  have  now  for  more  than  twenty 
years  followed  the  Rules  of  Practice  founded  on  the  final 
results  of  Atwood  v.  Sellar  and  Svendsen  v.  Wallace  ;  and 
this  circumstance  might  well  be  considered  a  sufficient 
reason  for  not  disturbing  the  existing  practice,  if  hereafter 
it  were  challenged  (^).] 

Div.  II. — Application  to  details, 

§  50.  The  two  decisions  of  Atwood  v.  Sellar  and  Mixed  cases. 
Svendsen  v.  Wallace,  laying  down  different  modes  of 
treatment  for  port  of  refuge  expenses,  according  as  the 
damage  to  repair  which  the  ship  goes  in  is  the  subject  of 
general  or  particular  average,  raise  a  new  and  difficult 
question,  viz.  how  are  we  to  treat  those  mixed  cases  in 
which  the  damage  to  the  ship  is  partly  general  and 
partly  particular  average  ;  as,  for  instance,  where  the 
ship  is  driven  in  by  an  aggregate  of  damage,  partly  of 

[n)  See  Carver,  §§  404,  408,  413.  (p)  See  the  remarks  of  Lord  Black- 

(o)  2  Arnould,  §§  958,  959,  962.  burn   in   Svendsen  v.    Wallace,   ante, 

p.  245. 


256 


PORT  OF  REFUGE  EXPENSES.  [CHAP.  V. 

one  kind,  partly  the  other,  neither  of  which  parts  would 
singly  be  enough  to  render  the  ship  unseaworthy,  though 
both  together  would  have  that  effect  ? 

The  point  to  be   determined,  in    such  a   case,  is, 
whether   the    damage   by   accident,  or  the  damage  by 
sacrifice,    is   to   be  treated  as  the  true   cause,  or  causa 
causans,  of  the  resolution  to  put  into  the  port  of  distress. 
For  determining  this  we  have  as  yet  no  judicial  mate- 
rials :  for  this  is  the  first  and  only  case  in  which  we  are 
required  to  go  behind  the  general  average  act,  or  sacrifice 
itself,  so  far  as  to  analyse  the  causes  which  led  up  to 
it.     In  the  case  of  jettison,  for  example,  we  confine  our 
attention  to  the  sacrifice  itself,  without  inquiring  whether 
the  leak,  or  other  cause  in  the  background  which  ren- 
dered the  jettison  necessary,  arose  from  some  accident 
primarily  affecting  the  ship  alone,  or  from  a  storm  which, 
without  doing  any  special  damage  to  the  ship,  rendered 
the  position  of  both  ship  and  cargo  perilous.     So  also 
it  would   be  natural  to   say  that  in  the  comparatively 
frequent  example  of  mixed  cases  of  this  nature,  where 
first  there  is  a  sacrifice,  such  as  the  cutting  away  of  a 
mast,   and   the   master,   notwithstanding,   continues  his 
voyage,  after  which  a  second  storm  arises,  and  the  ship 
then  springs  a  leak,  and  thereupon  the  master  bears  up 
for  a  port  of  refuge,  no  matter  whether  on  account  of 
the  leak  by  itself,  or  because  of  the  leak  as  affecting  a 
dismasted  ship,   so    that   the   two   injuries    combinedly 
render  the   ship  unseaworthy, — it  would  be  natural  to 
say  that,  as  being  the  proximate  cause,  the  leak,  and 
not  the  cutting  away  of  the  mast,  must  be  taken  to  be 
the    cause   of   putting   into    port.      This,    however,   we 
cannot  now  alwaj^s  say ;  for  it  by  no  means  follows  in 
all  such  cases  that  the  damage  which  comes  later  in  date 
is  the  true  causa  causans  of  the  resolution  to  put  into 


SECT.  LI. 3  DETAILS.  257 

port.     On  tlie  whole,  then,  it  seems  prudent  to  abstahi 
from  expressing  an  opinion. 

S  51.  What  is  the  precise  point  atwliich  the  areneral  At  wiiat  point 

.  Ill  safety  is 

average  is  to  cease,  on  the  ground  that  a  state  of  safety  attained. 
has  been  attained  ?     What  is  tq  be  considered  as  a  state 
of  safety  ? 

Even  in  tlie  pursuit  of  safety,  the  master  is  not  at 
libert}'  wholly  to  neglect  his  ulterior  purpose  of  com- 
pleting the  voyage.  Supposing  there  are  two  ports  of 
refuge  which  he  has  to  choose  between,  the  first  nearer 
and  cheaper  to  enter,  so  far  as  regards  the  mere  cost  of 
going  in,  than  the  second,  but  tlie  first  a  place  at  which 
the  shij)  cannot  be  repaired,  wliile  at  the  second  she  can ; 
the  second  is  tliat  which  he  ought,  if  practicable,  to 
select.  Were  lie  not  to  do  so,  he  might  be  even  com- 
mitting a  deviation.  He  is  bound  to  pursue  the  direct 
course  of  his  voyage,  unless  driven  from  it  by  necessity ; 
in  whicli  case,  he  must  depart  from  it  no  further  than  is 
requisite  in  order  that  he  may  resume  his  voyage  with 
safety.  The  liberty  tlms  given  to  depart  from  the  direct 
course,  is  really  given  only  as  a  means  towards  eventually 
completing  his  voyage.  He  is  bound  so  to  shape  his 
course  towards  the  place  of  destination  as  to  obtain  that 
combination  of  directness,  dispatch,  and  safety,  which 
on  the  whole  is  best  adapted  to  the  completion  of  his 
undertaking.  Hence,  if  he  carries  the  ship  to  a  place 
where  she  cannot  be  repaired,  wdien  he  might  with 
prudence  have  gone  to  a  place  where  she  could,  he  lias 
not  performed  his  duty. 

As  a  rule,  then,  the  "place  of  safety"  to  which  the 
master  may  take  the  ship  at  the  cliargc  of  the  general 
average,  is,  the  nearest  port  at  whicli  she  can  be  repaired. 
The  term  "nearest"  nmst  be  understood  not  with  refer- 

L.  s 


258  PORT  OF  REFUGE  EXPENSES.       [CHAP.  V. 

ence  to  mere  mileage ;  it  is  that  port  which,  on  the  whole, 
in  the  actual  circumstances  of  the  ship,  is  the  fittest  place 
for  repairing;   convenience  and  cheapness  being  fairly 
balanced  against  the  adv^antages  of  mere  nearness  (q). 
Cost  of  towing-  It  sometimes  happens  that  such  a  port  can  only  be 

to  a  place  ^  ^  ^  _  ^  -^ 

where  ship      rcachcd  in  two  sta^-es.     The  ship  may  have  to  be  brous^ht 

can  be  re-  ,  °  .  . 

paired.  to  anclior  in  a  sheltered  roadstead,  in  order  to  wait  for 

a  steamer  to  tow  her  to  the  repairing  port.  In  this  road- 
stead she  may  be  in  a  sort  of  temporary  safety ;  she 
might  even  lie  there  for  ever  without  danger.  Still,  as 
this  is  a  place  which  the  caj^tain  would  not  be  even 
justified  in  going  to,  except  as  a  step  towards  entering 
a  proper  harbour  for  repairing ;  and  as,  consequently, 
the  entering  the  roadstead  can  only  be  regarded  as  one 
part  of  a  larger  entire  operation,  the  general  average 
ought  not  to  be,  and  in  practice  is  not,  stopped  when  the 
ship  has  reached  the  roadstead.  The  cost  of  towing  the 
ship  from  the  roadstead  to  the  port  is  admitted  into 
general  average. 

Expenses  Whcu  the  port  of  rcfugc  at  which  the  ship  is  to  be 

lifter  rca,cliiii*^ 

the  port  of  °  rc^^aircd  has  been  reached,  it  is  not  always  the  case  that 
the  ship  and  cargo  are  at  that  moment  in  safety.  The 
ship  may  be  leaky,  and  may  require  pumping  to  keep 

Labourers       her  afloat.     The  cost  of  labourers  liired  for  this  purijose, 

^"redto  .  11.  J        1  ' 

piimp.  while  the  cargo  remains  on  board,  is  properly  admitted 

Discharging    into  general  average  (r). 

on  account  of  This  principle  leads  to  the  conclusion  that,  whether 

damage  to  the  ^  ^  > 

cargo.  tj^Q  cargo  be  discharged  to  avoid  a  common  danger,  or 

to  repair  the  ship,  or  merely  because  the  cargo  itself  is 
sea-damaged  and  would  not  be  fit  to  be  carried  forward 
unless  dried  (s),   the  cost  of  discharging  it,   this  being- 

[q)  See  PheJps  v.    IliU,    [1891]  1       219. 
Q.  B.  605  (C.  A.).  (s)  But  see  the  judgment  of  Brett, 

(r)  Birkley   v.    Presgruve,    1    East,       M.  E.,  in  Svendscn  v.  Wallace,  antt,. 


SECT.  LII.]  DETAILS.  259 

necessary  in  order  to  sever  a  connection  between  ship 
and  cargo  which  under  the  circumstances  renders  them 
both  valueless  for  the  time,  must  in  all  these  cases  be 
treated  as  a  general  average  (f). 

§  52.  With  regard  to  the  discharging  of  the  cargo,  Discharging- 
it  is  hardly  necessary  to  add  anything  to  what  has  been 
already  set  down.  No  question  arises  if  it  is  discharged 
for  the  common  safety.  If  it  is  discharged  merely  be- 
cause, while  it  is  on  board,  the  repair  to  the  ship,  to 
effect  which  the  ship  put  into  the  port  of  distress,  cannot 
be  effected,  the  cost  of  this  has  always  been,  and  accord- 
ing to  both  the  latest  decisions  has  rightly  been,  made 
the  subject  of  general  average;  the  only  intelligible  ex- 
planation of  wdiich,  on  the  principles  contended  for  bv 
the  defendants  in  Svendsen  v.  Wallace^  as  above  pointed 
out(z^),  is  that  given  by  Lord  Esher,  viz.,  that  the  act  of 
bearing  up  to  repair  is  not  yet  complete,  because  the 
ship  has  not  yet  been  brought  into  a  situation  in  which 
she  can  be  repaired  {x). 

2ip.  235,   23G,  where  he  states  that  on  the  voyage — acts  done  merely  to 

the  cost  of  discharging  cargo  merely  make  the  ship  fit  to  proceed,  or  done 

for  its   own   safety   should    not    be  merely  to  make  the  cargo  fit  to  be 

allowed    as    general    average.      See  carried  further  on  the  voyage,  are 

also  the  remarks  of  Mr.  Lowndes  in  not  general  average  acts,  and  do  not 

the  following  section  (No.  5'2).  afford  ground  for  a  general  average 

(0  This    "deadlock"    theory  was  contribution." 

noticed  and  condemned  by  Bowen,  (m)  Ante,  p.  236. 

L.  J.,  in  Svendsen  v.    Wallace,  ante,  (r)  If  Lord  Esher's  theory,  which 

p.   241.      It   seems   also  opposed   to  isdiscusseda/^^p,  pp.  251,252, iswrong, 

the   judgment  of   Lord  Alverstone,  one  may  be  driven,  where  the  repairs 

C.  J.,   in  Hamel  v.  P.  <f'   0.   Steam  are  not  general  average,  to  support 

Nuv.    Co.,   [1908]    2    K.   B.   298,   in  the  practice,  on  the  ground  that,  as 

which   his    lordship    says   (p.    305)  :  Bowen,  L.  J.,  says  {aiite,  p.  240),  it 

"If   the  consequence  of   a  peril  of  has  become  inveterate,  and  is  found 

the  sea  is  merely  to  render  one  part  to  bo  adequate.    Theoretically  Bowen, 

of  the   adventure    abortive — merely  L.  J.,  considers  it  unsound.     Simi- 

to  render  the  ship  unfit  to  proceed,  larly,  Mr.  Carver  considers  that  the 

or  the  cargo  unfit  to  be  carried  further  discharge  is  an  incident  of  the  repairs. 


260 


PORT  OF  REFUGE  EXPENSES. 


|_CHAP.  V. 


Discharging 
on  account  of 
damage  to 


When  cargo  is  discharged,  neither  to  avert  danger 
eitlier  actually  or  presumably  common  to  ship  and  cargo, 
nor  in  order  to  repair  the  ship  and  by  so  doing  render  it 
possible  to  continue  the  voyage,  but  for  the  exclusive 
benefit  of  the  cargo  or  some  part  of  it,  e.(j.^  when  cargo 
has  been  wetted  by  sea-water,  and  must  be  landed  in 
order  to  be  opened  out  and  dried,  there  is  no  settled 
practice  to  treat  the  cost  of  discharging  it  as  general 
average ;  and  though  I  have  known  cases  in  which  this 
has  been  done,  and  even  justified  on  the  ground  that 
there  is  no  connection  between  port  of  refuge  charges 
and  reasoning — /.<?.,  to  use  the  words  of  Blackburn,  J., 
all  this  is  "  a  sort  of  rule  of  thumb,  which,  however,  you 
would  not  disturb " — yet  the  better  opinion  appears 
to  be  that  in  such  a  case  the  entire  expense,  the  cost  of 
discharging  and  reloading,  equally  with  that  of  opening 
and  drying,  should  be  treated  as  a  special  charge  on  the 
goods  themselves  (.//).  This,  however,  can  only  be  laid 
down  with  a  degree  of  diffidence.  It  may  with  some  force 
be  argued  that,  since  the  shipowner  is  indirectly  interested 
in  the  discharging,  he  being  bound  to  use  due  care  in 
drying  the  goods  when  damaged,  and  being  liable  in 
damages  if  he  neglects  to  do  so  (.e),  he  ought  to  contri- 
bute towards  the  discharging  (a) ;  and  being  even  solely 


so  that  tlie  cost  thereof  should  be 
borne  in  the  same  way  as  the  cost 
of  the  repairs.     (Carver,  §  408.) 

(y)  See  per  Brett,  M.R.,  in  Sucudseii 
V.  Wallace,  »«i!e,pp.235,236;  per  Lord 
Alverstone  inHamel  v.  P.  &  0.  Steam 
Nav.  Co..  ante,  p.  259,  n.  (0- 

(z)  Notara  v.  Henderson  (1870-2), 
L.  E.  5Q.  B.  346;  7  Q.  B.  225. 

(«)  It  does  not  seem  to  the  editors 
a  proper  deduction  from  the  fact 
that  the  shipowner  owes  a  duty 
to  the  car"o-owner  to  take  care  of 


the  cargo,  that  ho  ought  to  bear  any 
part  of  the  expense  of  preserving  the 
cargo.  According  to  the  argument 
in  the  text,  when  the  master  in  the 
performance  of  his  duty  has  put  into 
a  port  of  refuge  to  have  damaged 
goods  re- conditioned,  the  shipowner 
ought  always  to  contribute  to  the 
expense  of  re-conditioning.  Yet,  as 
is  clearly  stated  in  Notara  v.  Hender- 
son, supra,  this  expense  falls  on  the 


SECT.  LIII.J  DETAILS.  261 

interested  in  earning'  the  frciiiht,  oujylit,  under  the  head 
of  a  special  charge  on  freight,  to  pay  the  entire  cost  of 
reloading-. 


S  53.  When  tlie  frei^-lit,  whether  Avhollv  or  in  part,  Treatment  of 

^  c       '  ..  J.  ^    reloading 

has  been  absolutely  i^repaid  by  the  shipper,  it  has  for  charges  when 

•^      ^       ^  -^  11/  freight  IS  paid 

some  time  been  the  practice  in  this  country  to  charge  the  "^  advance. 
prepaid  freight,  in  other  words,  the  owner  of  the  cargo, 
with  the  whole  or  a  proportionate  part,  as  the  case  may 
be,  of  the  cost  of  reloading  the  cargo  and  of  the  outward 
pilotage  and  port  charges.  These  charges  are  treated 
as  applicable  to  the  freight,  in  such  a  manner  that  who- 
ever would  in  fact  lose  the  freiorht  were  the  vovao-e  not 
completed  must  bear  the  burden  of  these  expenses. 

This  practice  appears  to  me  to  be  wholly  indefen- 
sible on  any  rational  ground.  It  grew  up  out  of  an 
opinion  or  fancy,  which  since  the  case  of  Allison  v.  The 
Bristol  Marine  Insurance  Co.  {h)  nmst  be  abandoned  as 
untenable,  namely,  that  prepaid  freight  must  in  all  its 
incidents  be  put  on  the  same  footing  as  freight,  that  is,  at 
the  shipowner's  risk.  If  the  expenses  in  question  are  not 
to  be  treated  as  general  average,  they  must  fall  on  that  one 
of  the  contracting  parties  whose  duty  it  is  to  reload  the 
cargo  and  proceed  on  the  voyage.  This  is  the  duty  of 
the  shipowner.  So  long  as  the  ship  is  able  to  complete 
the  voyage,  and  the  cargo  is  fit  to  be  carried  on,  it  can- 
not be  said  that  the  "  accidents  of  navigation"  prevent 
the  performance  of  the  contract :  and  the  shipowner's 
obligation  to  go  on  cannot  be  affected  by  the  circum- 
stance of  his  having  been  paid  for  that  service  in  advance. 
Our  old  practice  must  no  doubt  be  abandoned  so  soon  as 
it  is  seriously  challenged  [c). 

{h)  (187G),  1  App.  Cas.  209.  (c)   This  was  written    before  the 


262 


PORT  OF  EEFUGE  EXPENSES. 


[chap.  V. 


Reloading  is 

sometimes 

general 

averao'e. 


§  Ort.  There  are  cases  in  which  the  cost  of  reloading 
the  cargo  is  in  practice  admitted  into  general  average. 
If,  for  example,  a  ship  is  stranded,  and,  to  float  her,  a 
j^ortion  of  the  cargo  is  placed  in  lighters,  which  lie  along- 
side or  remain  by  the  ship,  and  when  she  floats  the  cargo 
is  at  once  put  back,  here  the  whole  lighter-hire,  together 
with  the  cost  of  putting  the  cargo  out  of  the  ship  and 
back,  is,  properly,  treated  as  general  average.  In  such  a 
case  the  whole  thing  is  one  entire  operation,  and  there 
has  been  no   actual    severance  of   the    cargo  from  the 


si 


lip. 


Substituted 
expenses. 


§  55.  We  come  now  to  a  class  of  expenses  in  a  port 
of  refuge  which  are  in  practice  dealt  witli  as  "  substituted 
expenses"  :  that  is  to  say.  which  are  dealt  with,  not  by 
inquiring  wlio  is  the  party  benefited  by  the  expense  ac- 
tually incurred,  but,  in  what  manner  would  the  expense 
have  fallen,  had  some  other  more  expensive  course  been 
taken  instead  of  that  which  w^as  in  fact  adopted. 

Before  giving  a  detailed  account  of  our  practice  with 
regard  to  expenditure  of  this  class,  it  is  necessary  first  to 
consider  how  far,  and  within  what  limits,  this  practice 
has  a  legal  standing  ground. 


decision  in  Svendsen  v.  Wallace.  Lord 
Blackburn,  in  Ms  judgment  in  that 
case((1885),10App.Cas.404,atp.416, 
see  ante,  p.  245),  takes  it  for  granted 
that  it  is  simply  a  mistake  to  make 
charterer's  prepaid  freight  pay  any 
part  of  the  cost  of  reloading;  his 
words  being,  "If  the  4oOL,  which 
is  the  cost  of  reshipping,  is  properly 
charged  to  freight,  the  defendants 
[the  charterers]  are  not  liable  to 
pay  any  portion  of  it."  (See  to  the 
same  effect,  Carver,  §  410.) 


The  rule  of  the  Association  of 
Average  Adjusters  (No.  20e)  on  this 
point  is,  however,  as  follows : — 

"  The  expenses  referred  to  in 
clause  (d)"  (viz.,  the  cost  of  reload- 
ing the  cargo,  and  the  outward  port 
charges)  ' '  are  charged  to  the  party 
who  runs  the  risk  of  freight — that  is, 
wholly  to  the  charterer — if  the  whole 
freight  has  been  prepaid ;  and,  if 
l^art  only,  then  in  the  proportion 
which  the  part  prepaid  bears  to  the 
whole  freight." 


SECT.  LV.] 


DETAILS. 


263 


The  decisions,  bearing  on  this  question,  may  be 
aiTani2red  under  two  heads  : — 

1.  Where  expenses  which  would  have  been  recover- 
able from  another  person,  e.g.,  from  an  underwriter,  have 
been  avoided  by  adopting  some  course  which  involves  a 
greater  loss  or  a  heavier  expense  to  the  claimant,  but  for 
which  that  other  person  is  not  liable,  the  latter  will 
nevertheless  be  held  liable  up  to  the  amount  of  tlie 
expense  which  must  have  been  incurred,  had  sucli  a 
course  not  been  adopted. 

In  LecY.  The  Southern  Insurance  Co.(d),  where  cargo, 
which  had  been  landed  at  a  port  of  refuge,  and  which, 
in  the  opinion  of  the  court  on  the  evidence  before  them, 
might  have  been  reloaded  and  carried  on  in  the  sliip, 
was,  Vvdthout  the  consent  of  the  underwriter  on  freight, 
forwarded  to  its  destination  by  rail,  it  was  held  that, 
although  the  underwriter  on  freight  was  not  liable  for 
the  entire  railway  carriage,  he  was  liable  for  so  much  as 
would  equal  tlie  cost  of  reloading  the  cargo  in  the 
ship  (e). 

2.  The  master's  right,  not  only  to  enter  a  port  of 
refuge,  but  to  remain  and  incur  expense  there,  is  strictly 
limited  to  the  necessity  of  tlie  case.  He  must  not  subject 
the  cargo  to  delay  or  expense  which  it  is  in  his  power, 
with  safety  to  all,  to  prevent.     He  has  not  an  absolute 


{(l)  (1870),  L.  E.  5  C.  P.  397;  39 
L.  J.  (N.  S.)  C.  P.  218. 

(e)  In  Kni(jht\.  Faith  (ISoO),  15 
Q.  B.  649,  where  a  ship  had  been 
sold  as  a  wreck,  but  because  there 
had  been  no  notice  of  abandonment, 
the  underwriter  was  held  to  be  not 
liable  for  a  total  loss,  he  was  yet 
held  liable  for  a  particular  average 
based  on  the  estimated  cost  of  re- 
pairing— this  being  a  smaller  amount 
than  the  owner's  actual  loss  by  selling 


the  shij) — notwithstanding  that  the 
cost  of  repairing  had  not  been  actually 
incurred.  "  If,"  said  Lord  Campbell, 
"  the  ship  had  been  fairly  sold  to  be 
repaired,  she  must  have  sold  for  less 
on  account  of  the  damaged  state  of 
her  bottom."  (See  also  Lidgett  v. 
Sccretan  (1871),  L.  E.  6  C.  P.  616; 
40  L.  J.  C.  P.  257;  Pitman  y.  Uni- 
versal Mar.  Ins.  Co.  (1882),  9  Q.  B.  D. 
192  (C.  A.) ;  Marine  Insurance  Act, 
1906,  s.  69.) 


264  PORT  OF  REFUGE  EXPENSES.        [CHAP.  X. 

riglit  to  make  a  complete  repair  of  the  ship  at  the  port  of 
refuge,  if  a  partial  or  temporary  repair  will  suffice  to 
render  her  seaworthy  to  carry  the  cargo  to  its  destina- 
tion. Hence,  if  tliere  be  two  courses  open  to  him  at  the 
port  of  refuge,  by  the  first  of  which  the  ship  will  be 
completely  repaired,  but  there  will  be  a  long  delay  or  a 
considerable  expense  of  general  average,  while  by  the 
second  this  delay  or  expense  will  be  diminished,  and  the 
ship,  though  incompletely  repaired,  will  be  fit  to  sail  on 
her  voyage  with  her  whole  cargo,  the  second  course  is 
that  which  the  master  is  legally  bomid  to  adopt.  Having 
done  so,  he  has  no  right  to  make  a  merit  of  his  conduct, 
and  claim  compensation  from  the  cargo,  on  the  ground 
of  his  having  rendered  it  a  service  by  not  having  chosen 
the  more  expensive  course.  In  such  a  case,  therefore,  an 
adjustment  on  the  basis  of  "substituted  expenses"  would 
be  incorrect. 

This  is  expressly  determined  by  the  decision  in 
Wilson  V.  T/ie  Bank  of  Victoria[f).  A  dismasted  ship, 
having:  an  auxiliary  screw,  had  o^one  for  refuo:e  to  the 
port  of  Rio  de  Janeiro.  She  might  have  been  completely 
repaired  there,  so  as  to  sail  home,  using  her  screw  as 
auxiliary  only,  but  such  a  repair  would  have  involved 
a  very  considerable  expense,  a  large  part  of  wdiich  would 
have  constituted  a  general  average ;  while  she  could  be 
rendered  seaworthy  to  come  home,  under  steam  only, 
by  merely  making  some  temporar}"  repairs  and  laying  in 
a  large  stock  of  coal.  This  course,  which  was  clearly 
best  for  all,  was  adopted.  The  owner  of  the  ship  then 
claimed  that  his  outlay  for  the  temporary  repair  and  the 
coal  should  be  treated  as  a  "substituted  exj)ense;"  that 
is,  should  be  divided  rateably  between  the  saving  effected 
to  the  general  average,  and  that  effected  to  himself  as 

(/)  (1867),  L.  E.  2  a  B.  203;  3G  L.  J.  (Q.  B.)  89. 


SECT.  LV.J  DETAILS. 

shipowner,  by  not  having  repaired  at  Rio.  The  court 
decided,  liowever,  lirst,  that  the  employment  of  the 
auxiHarv  screw  in  the  manner  described  amounted  to  no 
more  than  the  using  of  the  ship's  own  propelHng  power 
within  the  terms  of  the  contract ;  and,  secondly,  that, 
the  master  being  legally  bound  to  adopt  this  more  econo- 
mical course,  there  was  no  rioht  to  claim  anvthino-  as 
compensation  or  reward  for  not  having  adopted  the 
course  which  would  have  been  more  expensive. 

In  delivering  the  judgment    of   the    court,    Black- 
burn, J.,  said : — 

'■  Wc  wish  to  guard  ag-ainst  being-  supposed  to  sanctiou  the 
notiou  that  in  a  case  like  this  the  sliipowners  could  have  charged 
the  owners  of  the  cargo  with  any  part  of  the  expenses  of  unshipping- 
and  warehousing-  the  gold  at  Rio,  supposing'  the  master  had  under 
the  circumstances  adopted  that  course.  Inasmuch  as  the  master 
could,  by  the  exxDenditure  of  a  comparatively  small  sum  on  temporar}-- 
repairs  and  coals,  bring-  the  ship  and  cargo  safely  home,  it  was  his 
duty  to  do  so;  and,  though  we  do  not  decide  a  point  which  does  not 
arise,  we  are  not  to  be  taken  as  deciding-  that  his  owners  would  not 
have  been  liable  to  the  owners  of  the  cargo  if  he  had  not  taken  this 
course . 

"  But,  passing-  by  this,  we  think  that  the  expenses  actually  in- 
curred must  be  apportioned  according  to  the  facts  which  actually 
happened,  and  that  there  is  no  legal  principle  on  which  they  can 
be  apportioned  according-  to  what  might  have  been  the  facts  if  a 
different  course  had  been  pursued.  No  case  or  authority  was  cited 
to  support  the  principle  contended  for,  nor  are  we  aware  of  any. 
If  in  a  particular  trade  it  has  been  found  convenient  to  act  on  this 
principle,  and  that  has  been  done  to  such  an  extent  as  to  create  a 
custom,  tacitly  making  it  part  of  the  contract  that  this  shall  be  the 
principle  applied,  or  if  the  parties  to  a  charter-party  stipulate  that 
it  shall  be  so,  and  by  words  of  reference  to  the  charter-party  in  the 
bills  of  lading  and  policy  of  insurance  make  it  part  of  the  contract 
affecting  everyone,  the  case  would  be  different;  but  as  it  is,  the 
principle  proposed  is  not,  we  think,  tenable  at  law"  {g). 

{</)  (1S67),  L.  E.  2  Q.  B.  203;  36  L.  J.  (Q.  B.)  89. 


265 


266  POET  OF  REFUGE  EXPENSES.        [cHAP.  V. 

These  decisions,  taken  together,  indicate  the  limits 
within  which  the  method  of  adjustment  as  "substituted 
expenses"  must  be  restricted.  Wilson  v.  The  Bank  of 
Victoria  shows  us  tliat  this  method  is  not  to  be  adopted, 
unless  there  has  been  something  done,  not  merely  involv- 
ing loss  or  expense  to  the  shipowner  and  reduction  of 
expense  under  the  head  of  general  average,  but  also  in 
excess  of  the  shij^owner's  duty  under  his  contract.  The 
other  cases  cited  show  that  when  the  course  taken  is  in 
excess  of  this  duty,  and  when  it  involves  a  loss  or  expense 
to  the  shipowner,  w^hile  it  relieves  the  general  average  of 
a  charge  which  otherwise  must  have  fallen  upon  it,  the 
cargo  must  not  escape  from  liability  altogether,  on  the 
plea  that  the  expense  actually  incurred  is  not  itself 
properly  general  average,  wdiile  the  alternative  expense, 
which  would  have  been  such,  has  not  actually  been 
incurred.  The  extent  of  the  cargo's  liability  in  such  a 
case  has  not  yet  been  judicially  determined ;  but  w^e 
learn  from  the  judgment  just  cited  that  it  may  be  regu- 
lated by  custom. 

We  have  now  to  consider,  then,  to  what  extent  this 
process  of  regulating  the   treatment   of  substituted   ex- 
penses by  custom  has  been  carried,  or  is  in  the  process 
of  being  carried. 
Hire  of  hulks  1 .   One  sucli  caso,   as  to  wdiich   the  custom  is  old- 

established  and  clearly  settled,  relates  to  the  employment 
of  hulks  or  lighters  as  store-ships  for  the  cargo  at  a  port 
of  refuge.  When  the  cargo  has  to  be  discharged,  it  is 
sometimes  found  cheaper  to  leave  it  in  lighters  than  to 
send  it  ashore  and  place  it  in  a  warehouse.  The  hire  of 
the  lighters  may  cost  more  than  the  warehouse  rent  alone, 
and  more  than  the  cost  of  sending  the  cargo  ashore  alone, 
yet  less  than  these  two  expenses  together.  Hence  has 
arisen  the  custom  of   dividing'  the  li(>liter  hire  or  hulk 


SECT.  LV.J  DETAILS.  ^t)7 

hire  between  the  geucral  averajii-e,  the  cargo,  and  the 
freight,  in  the  proportions  in  which  these  several  inte- 
rests would  have  paid  for  the  cost  of  landing,  the  ware- 
house rent,  and  the  cost  of  reshipment,  had  tlie  ordinary 
and  more  expensive  course  of  landing  the  cargo  been 
adopted  {gg). 

This  custom  has  been  carried  beyond  the  legitimate 
limits  of  substituted  expenses,  as  defined  above.  Even 
in  ports  where  no  warehouses  are  to  be  had,  and  where  a 
cargo  is  on  that  account  necessarily  placed  in  a  hulk,  as 
the  only  course  practicable,  the  same  rule  [said  Mr. 
LowndesJ  of  dividing  the  hulk  hire,  though  the  basis  of 
apportionment  is  then  purely  fictitious,  is  adopted. 

2.  When  cargoes,   of  which  the  value  is   small  in  Buying  new 

IT        cargo  to  save 

proportion  to  the  bulk,  such  as  coals,  have  to  be  dis-  expense  on 
charged  at  a  port  of  refuge,  it  sometimes  is,  to  save 
expense,  arranged  between  the  master  and  the  shipper 
that  tlie  cargo  shall  be  sold  from  alongside,  and  a  fresh 
cargo  purchased  to  take  its  place  when  the  ship  is  ready 
for  it.  In  such  a  case,  the  loss  on  the  sale  and  repur- 
chase is  treated  as  substitution  for  the  expenditure  saved 
by  the  adoption  of  this  course,  and  is  divided  in  the 
proportions  in  which  that  expenditure  would  have  fallen. 
This  mode  of  dealing  with  the  loss  appears  to  be  per- 
fectly leHtimate. 

t3.  Sometimes,  again,  in  order  to  save  this  expense  Transhippiu 
of  landing  and  re-shipping  a  cargo,  the  master,  with  the 
consent  of  the  shippers,  hires  another  vessel  to  take  his 
cargo  from  alongside,  and  carry  it  direct  to  its  destina- 
tion. If,  having  done  this,  he  is  obliged  to  fill  up  his 
vessel  at  a  lower  rate  of  freight,  this  loss  of  freight, 
together  with  the  cost  of  the  forwarding  vessel,  constitutes 

{(](])  See  Eules  of  Practice  of  the  Average  Adjusters'  Association,  No.  20  (f), 
pust,  App.  Z. 


entire  cargo. 


268  PORT  OF  REFUGE  EXPENSES.        [C'HAP.  V- 

a  charge  whicli  is  substituted  for  the  expenses  saved  by 
such  a  measure  (h).  If  the  substituted  charge  is  greater 
than  the  expenses  saved,  the  master  must  of  course  bear 
the  difference  himself  ;  but,  to  the  extent  of  the  saving, 
he  is  held  in  practice,  and  rightly  so,  to  be  entitled  to 
claim  as  if  the  expenses  of  discharging  are  incurred. 
His  right  so  to  claim  seems  to  follow  from  the  decision 
in  Lee  v.  The  Southern  Insurance  Co.  (i). 
Tiansiiipping  4.  Another  case  of  substituted  expenses  arises,  when 

the  choice  lies  between  landlnof  the  entire  caro;o  and 
making  a  complete  repair  of  the  ship,  which  will  enable 
her  to  carry  on  the  whole  cargo,  or  else  transhipping, 
and  sending  on  in  another  vessel  a  portion  of  the  cargo, 
and  sailing  home  unrepaired,  or  partially  repaired,  with 
the  remainder.  This  can  be  done  when  the  unrepaired 
ship,  though  not  seaworthy  to  carry  her  whole  cargo,  is 
capable  of  sailing  if  less  deeply  laden. 

This  is  a  case  as  to  which  there  is  at  present  no 
clearly-defined  custom.  It  seems  to  stand  on  much  the 
same  footing  as  that  which  may  be  called  case  No.  6, 
and  it  must  be  reserved  for  discussion  till  we  come  to 
the  latter. 
Temporary  5.  Supposo  that,  instead  of  completely  repairing  at 

gSrai"^^^^  the  port  of  refuge,  which  will  necessitate  the  discharge 
of  the  cargo,  the  master  saves  this  exj^ense  by  a  tem- 
porary repair,  which  renders  the  ship  fit  to  sail  home 

(A)  The   editors   submit    that   the  800/.   instead  of    1,000/.      Therefore 

substituted  charge  is  the  difference  his  loss,  i.e.,  200/.,  is  the  substituted 

between  the  cost  of  the  forwarding  charge. 

vessel    and    the    freight  which    the  If  Mr.  Lowndes'  rule  be  literally 

master  earns  by  filling  up  the  vessel  applied,    the   calculation   will   be  as 

at  a  lower  freight.     For  instance,  let  follows :  —The  loss  of  freight  through 

1,000/.  be  the  original  freight,  TOO/.  filling  up  at  a  lower  freight  is  1,000/. 

the  freight  of  the  substituted  ship,  -  o00/.=u00/.     Therefore  the  substi- 

500/.  the  freight  earned  by  filling  up.  tuted   charge   is   500/.  -f  TOO/.,   i.e., 

The    shipowner    receives    1,000/.   +  1,200/.! 

500/.,    and  he  disburses   TOO/.      Ho  (?)  (18T0),  L.  R.  5  C.  P.  39T,  (("fe, 

therefore    receives  the   net   sum    of  p.  263. 


expense. 


SECT.  LV.J  DETAILS.  269 

with  1x11  her  cargo,  but  is  of  no  permanent  value  to  her. 
Can  the  cost  of  this  temporary  repair  be  treated  as  a 
substituted  expense,  and  charged,  wholly  or  in  part,  to 
general  average  ? 

This  is  a  very  old  (question.  It  was  apparently 
decided  in  the  negative  in  the  old  Roman  law  (/;•).  In 
modern  times,  previously  to  the  decision  in  Wilson  v. 
The  Bank  of  Victoria  (/),  there  has  been  a  tendency  to 
look  Avith  favour  on  such  claims.  But  that  decision 
must  now  be  regarded  as  finally  putting  an  end  to  them. 
There  is  no  real  alternative  in  such  a  case :  if  the  ship 
can  be  made  seaworthy  to  sail,  without  extraneous 
assistance,  with  all  her  cargo,  by  adopting  this  cheaper 
course,  the  master  has  no  right  to  adopt  one  that  is  more 
costly. 

If,  indeed,  the  ship  can  onl}^  be  made  seaworthy 
for  this  purpose  by  being  supplied  with  something  which 
does  not  fall  within  the  shipowner's  contract:, — for 
example,  if  it  is  necessary  to  put  on  board  extra  hands 
to  work  the  pumps, — this  additional  assistance  must  be 
treated  either  as  a  substituted  expense  or  as  general 
average. 

6.  This  leads  us  to  the  sixth  case,  which  is  one  of  Towing  ship 
frequent  occurrence,  and  great  practical  importance.  in  piac^of*"'' 

Suppose  a  ship  is  at  a  port  of  refuge,  at  which  she  '"'^P''"'""- 
can  be  completely  repaired.  She  is  not  seaworthy  to 
sail  from  that  port,  unless  so  repaired :  but  she  can  be 
safely  towed  from  that  port  to  her  place  of  destination 
by  a  steamer.  If  this  course  is  adopted,  who  is  to  pay 
for  the  steamer  ? 

Let  us  further  suppose  that  the  cost  of  the  steamer 
is  a  larger  sum  than  the  saving  in  the  cost  of  dischar"ino' 

{k)  Leg.  Ehod.  de  Jact.  (lib.   14,       Appendix  A.,  sect.  7,  infra. 
tit.  2,  fr.  (i,  1  Pardessus,  108).     See  (/)  Aufr,  p.  264. 


270  PORT  OF  REFUGE  EXPENSES.  [CHAP.  V. 

cargo  and  other  general  average  expenses  in  the  port  of 
refuge,  and  also  larger  than  the  saving  to  the  shipowner 
from  having  his  repairs  effected  at  home  instead  of  at 
the  port  of  refuge  ;  hut  not  larger  than  these  two 
economies  combined. 

In  such  a  case  there  seems  no  escape  from  the  method 
of  adjustment  by  "substituted  expenses."  Is  the  whole 
cost  of  the  tug  to  be  treated  as  general  average  ?  The 
owner  of  the  cargo  will  object,  that  he  would  rather  let 
the  ship  be  repaired  on  the  spot.  The  master,  having 
once  gone  into  port  for  the  purpose  of  repairing,  has  no 
right,  he  would  say,  unnecessaril}^  to  change  that  purpose 
to  his  detriment.  The  cost  of  towing  in  such  a  case  is 
not  an  expense  necessarily  incurred  for  the  common 
safety  :  the  ship  was  already  in  safety,  and  it  was  not 
necessary  that  she  should  be  towed.  Is,  then,  the  whole 
cost  to  fall  on  the  shipowner  ?  That  the  shipowner  might 
as  fairh^  object  to:  for  the  change  of  plan,  by  towing 
instead  of  repairing,  was  on  the  whole  judicious,  and 
the  expenditure,  taken  altogether,  was  reduced  by  it. 

Some  equitable  division  must  be  made,  then,  of  the 
cost  of  towage  ;  and  the  fairest  basis  for  it  seems  to  be, 
that  each  interest  concerned  should  pay  its  share,  in  the 
])roportions  of  the  saving  effected  to  each  by  towing 
instead  of  discharging  cargo  and  repairing  at  the  port  of 
refuge. 

A  custom,  however,  it  appears,  is  requisite,  in  order 
to  sanction  this  mode  of  treatment.  [Such  a  custom, 
Mr.  Lowndes  said,  was  in  the  process  of  formation  at 
the  time  when  the  last  edition  of  this  work  was  pub- 
lished,] The  advantage  resulting  from  the  employment 
of  tugs  on  such  occasions  is  so  obvious,  that  underwriters, 
when  consulted  before  the  tug  is  hired,  are  always  ready 
to  encourage  the  adoption  of  this  course  by  agreeing  to 


SECT.  LV.] 


DETAILS. 


271 


pay  an  equitable  share  of  the  expense.  It  is  a  serious 
inconvenience  to  be  obliged  to  make  bargains  of  this 
nature  in  each  particular  case :  and  this  inconvenience 
seems  to  be  leading  to  the  establishment  of  a  general 
understanding,  which  will  in  time  acquire  the  binding 
force  of  a  custom,  that  the  cost  of  towing  a  disabled  ship 
from  a  port  of  refuge  is  to  be  apportioned  on  the  basis 
here  indicated. 

It  may  indeed  be  doubted  whether  such  a  custom 
does  not  already  actually  exist  (m). 


( in )  The  following  rules  of  practice 
have  been  laid  down  by  the  Average 
Adjusters'  Association : — 

' '  That  if  a  ship  bo  in  a  jioit  of 
refuge  af  which  it  is  practicable  to 
repair  her,  and  if,  in  order  to  save 
expense,  she  be  towed  thence  to  some 
other  port,  then  the  extra  cost  of  such 
towage  shall  be  divided  in  proportion 
to  the  saving  of  expense  thereby  oc- 
casioned to  the  several  parties  to  the 
adventure." 

"That  if  a  ship  bo  in  a  port  of 
refuge  at  which  it  is  jiracticable  to 
repair  her  so  as  to  enable  her  to  carry 
on  the  whole  cargo,  but,  in  order  to 
save  expense,  the  cargo,  or  a  portion 
of  it,  be  transhipped  by  another  ves- 
sel, or  otherwise  forwarded,  then  the 
cost  of  such  transhipment  (up  to  the 
amount  of  expense  saved)  shall  be 
divided  in  proi)ortion  to  the  saving 
of  expense  thereby  occasioned  to  the 
several  parties  to  the  adventure." 

"That  if  a  ship  be  in  a  port  of 
refuge  at  which  it  is  practicable  to 
repair  her  so  as  to  enable  her  to 
carry  on  the  whole  cargo,  or  such 
portion  of  it  as  is  fit  to  be  carried  on, 
but,  in  order  to  save  expense,  the 
cargo,  or  a  portion  of  it,  be,  with  the 
consent  of  the  owners  of  such  cargo, 
sold  at  the  port  of  refuge,  then  the 
loss  by  sale  including  loss  of  freight 


on  cargo  so  sold  (up  to  the  amount 
of  expense  saved)  shall  be  divided 
in  proportion  to  the  saving  of  expense 
thereby  occasioned  to  the  several 
parties  to  the  adventure ;  i^rovided 
always  that  the  amount  so  divided 
shall  in  no  case  exceed  the  cost  of 
transhipment  and/or  forwarding  re- 
ferred to  in  the  preceding  rule  of  the 
Association."' 

These  rules  are  still  in  force  and 
acted  on,  as  is  likewise  a  resolution 
interpretative  of  the  rule  respecting 
substituted  expenses,  passed  in  1877 
and  confirmed  in  1.S7S,  in  order  to 
exclude  what  was  found  or  thought 
too  vague  and  disputable  in  its  con- 
ditions, viz.  : — 

"  That  for  the  pm-pose  of  avoiding 
any  misinterpretation  of  the  resolu- 
tion relating  to  the  apportionment  of 
substituted  expenses,  it  is  declared 
that  the  saving  of  expense  therein 
mentioned  is  limited  to  a  saving  or 
reduction  of  the  actual  outlaj-,  in- 
eluding  the  crew's  wages  and  pro- 
visions, if  any,  which  would  have 
been  incurred  at  the  port  of  refuge, 
if  the  vessel  had  been  rei)aired  there, 
and  does  not  include  supposed  losses 
or  expenses,  such  as  interest,  loss 
of  market,  demurrage,  or  assumed 
damage  by  discharging." 


272 


PORT  OF  EEFUGE  EXPENSES.        [CHAP.  V. 


Effect  of  con- 
demnation of 
ship  at  port 
of  refuge. 


What  justi- 
iies  condem- 
nation. 


§  06.  Up  to  this  point,  we  have  dealt  with  those 
expenses  at  a  port  of  refuge  which  are  incurred  when 
the  ship  is  made  ready,  at  that  port,  to  j^rosecute  lier 
voyage.  We  have  now  to  consider  those  which  are 
incurred,  when  the  ship  is  condemned  at  such  a  port  as 
not  being  worth  repairing. 

According  to  English  law,  if  a  ship  is  so  damaged 
by  sea  peril  that,  although  it  be  possible  to  repair  her, 
the  cost  of  the  repairs  necessary  to  enable  her  to  com- 
plete the  voyage  would  be  so  great  that  it  would  be 
unreasonable  to  expect  the  shipowner  to  incur  it,  the 
owner  is  not  bound  to  repair  her.  In  such  a  case,  his 
undertaking  to  carry  the  cargo  to  its  destination  is 
terminated  by  one  of  the  accidents  of  navigation  ex- 
pressly excepted  in  the  bill  of  lading  (n). 


{n)  Assicuraziord  Generale  v.  S.S. 
Bessie  Morris  Co.,  [1S92]  2  Q.  B. 
652  (C.  A.).  Mr.  Lowndes,  citing 
Moss  V.  Smith  (1850),  9  C.  B.  94, 
laid  down  the  rule  that  the  owner  is 
not  bound  to  repair,  if  ' '  the  repair 
will  cost  more  than  the  shij)  when 
rejjaired,  together  with  the  freight 
she  will  earn  will  be  actually  worth." 
Neither  Moss  v.  Smith,  however,  nor 
the  judgment  of  the  Court  of  Appeal 
in  Assicurazioxi  Generale  v.  S.S. 
Bessie  Morris  Co.,  justifie^^  a  hard- 
and-fast  rule,  which  implies  that  the 
shipowner  is  bound  to  repair,  if  the 
value  of  the  ship  when  repaired  and 
the  freight  to  be  earned  will  together 
exceed  the  cost  of  the  repairs.  Muss 
V.  Smith  was  an  action  against  an 
underwriter  on  freight,  in  which  it 
was  contended  that  the  as-ured  could 
claim  for  a  tot:.!  loss  of  freight  if  the 
cost  of  repairing  the  ship  exceeded 
the  freight ;  and  it  became  necessary 
to  discuss  the  extent  of  the  shij:)- 
owner's  obligation  to  repair,  as  be- 


tween himself  and  the  owner  of  the 
goods.  Cresswell,  J.,  in  giving 
judgment,  said: — "The  shipowner's 
contract  to  carry  the  cargo  would  be 
absolute,  but  for  the  exception  in- 
troduced into  the  bill  of  lading, — 
unless  prevented  by  perils  of  the  sea. 
Now,  when  is  the  shipowner  said  to 
be  prevented  by  perils  of  the  sea 
from  fulfilling  the  contract  he  has 
entered  into  ?  When  the  ship  is,  bj- 
a  i^eril  of  the  sea,  rendered  incapable 
of  performing  the  voyage.  A  ship 
is  not  rendered  incapable  of  perfonn- 
ing  the  voyage  when  she  is  merely 
damaged  to  an  extent  which  renders 
some  repairs  necessary  :  if  that  were 
so,  any,  the  most  inconsiderable 
damage,  such  as  the  loss  of  her 
rudder,  without  which  she  could  not 
jjroceed,  would  render  her  incapable 
of  fulfilling  the  contract  contained  in 
the  bill  of  lading.  But,  if  a  ship 
sustains  so  much  sea  damage  that 
she  cannot  be  re2)aired,  so  as  to  be 
rendered  competent  to.  continue  the 


SECT.  LVI.J 


CONDEMNATION, 


273 


W  lien  the  ship  has  been  thus  lawfully  condemned,  Rule  for 

'  .    ,  English  ships. 

the  position  of  the  owner  of  a  ship  under  the  British  flag 


adventure,  then  the  owner  is  pre- 
vented by  a  peril  of  the  sea  from 
fulfilling  "his  contract."  (9  0.  B. 
pp.  105-106.) 

The  meaning  (;f  the  term  "  cannot 
be  rej^aired "  is  explained  by  the 
same  leai'ned  judge,  and  also  by 
Maule,  J.,  to  refer  not  to  an  absolute, 
but  also  to  a  pecuniary  impossibility. 
' '  In  matters  of  business,"  said  Maule, 
J.,  "a  thing  is  said  to  be  impossible 
when  it  is  not  practicable  ;  and  a 
thing  is  impracticable  when  it  can 
only  be  done  at  an  excessive  or  un- 
reasonable cost.  A  man  may  be 
said  to  have  lost  a  shilling,  when  he 
has  dropped  it  into  dec])  water  ; 
though  it  might  be  possible,  by 
some  verj^  expensive  contrivance,  to 
recover  it.  8o.  if  a  ship  sustains 
such  extensive  damage,  that  it  would 
not  be  reasonably  practicable  to  re- 
pair her,  seeing  that  the  expense  of 
rejiairs  would  be'  such  that  no  man 
of  common  sense  would  incur  the 
outlay,  the  ship  is  said  to  be  totally 
lost."     (lb.  p.  IDS.) 

Wilde,  C.  J.,  said  :— "  We  are 
asked,  AVould  any  man  in  his  senses 
spend  1,000/.  upon  the  re2)airs  of  a 
ship  for  the  mere  purpose  of  earning 
500/.  freight  ?  To  this  I  answer.  Cer- 
tainly not :  but  this  is  not  the  true 
question.  If,  by  expending  1,000/. 
upon  the  repairs,  he  gets,  not  only 
500/.  freight,  but  also  a  ship  worth 
0,000/.,  who  will  for  a  moment  ques- 
tion the  prudence  of  the  outlay  ? " 
(lb.  p.  lOS.) 

Some  dicta  in  more  recent  cases 
might  be  cited  as  throwing  doubt 
on  the  rule  laid  down  in  Moss  v. 
Smith.  In  Worms  v.  Slorcij,  Parke, 
B.,  said: — "If  the  vessel  sails  in  a 
seaworthy  state,  and  in  the  course  of 

L. 


the  voyage  is  damaged  by  perils  of 
the  sea,  the  owner  is  not  hound  to 
repair  it,  but  if  he  does  not  choose 
to  repair,  he  ought  not  to  go  to  sea 
with  the  shij)  in  an  unseaworthy 
state,  and  so  cause  a  loss  of  the 
cargo  :  he  ought  either  to  repair  or 
stop."  ((1S55),  11  Exch.427.)  And 
Willos,  J.,  in  referring  to  this  judg- 
ment in  JJlasco  v.  Fletcher  ( (1803), 
14  C.  B.  (N.  S.)  147,  see  p.  157), 
and  again  in  De  Cuadra  v.  Swuun 
((1864),  16  C.  B.  (N.  S.)  795),  ap- 
pears to  incline  towards  the  opinion 
that,  if  the  ship  was  seaworthy  at 
starting,  and  has  bsen  rendered 
unseaworthy  by  sea  peril,  the  owner 
is  under  no  (jbligation  towards  the 
freighter  to  incur  expense  in  repair- 
ing. It  is  conceived,  however,  that 
these  expressions  of  opinion,  when 
taken  in  conjunction  with  the  deci- 
sion of  Moss  v.  Smith,  can  only 
be  regarded  a-;  confirmations  of  the 
doctrine  that  the  shipowner  is  not 
under  an  absolute  obligation  to  re- 
pair at  any  cost.  In  confirmation  of 
this,  see  a  remark  of  Brett,  J.,  in 
Mavro  v.  Ocean  Marine  Insurance  Co. 
(1874),  L.  R.  9C.  P.  at  p.  601. 

This  subject  has  been  further  dis- 
cussed in  the  cases  of  Atwood  v. 
Sel/ar,  and  Scendsen  v.  Wallace.  See, 
on  the  one  hand,  the  dicta  of  Cock- 
burn,  C.  J.,  in  the  former  case 
((1879),  4  Q.  B.  D.  342,  at  p.  -^oS)  ; 
see  ante,  p.  224  ;  and  Lord  Black- 
burn's observations  on  the  subject 
in'  Scendsen  v.  Wallace  ((18S5),  10 
App.  Cas.  404,  at  p.  417;  ante,  p.  247). 

In  Assicurazioni  Generale  v.  S.S. 
Bessie  Morris  Co.,  [1892]  1  Q.  B. 
571,  damages  wei-e  claimed  by  tho 
charterers  of  the  ship  against  her 
owners  for  abandoning  the  voyage 


274 


PORT  OF  REFUGE  EXPENSES. 


fCHAP.  V. 


is  as  follows :    He  has  the  privileg-e   of  hiring  another 
vessel,  and  forwarding-  the  cargo  in  it  to  its  destination, 


at  an  intermediate  port  after  she  had 
sustained  damage,  although  she  was 
in  fact  repaired  ;  and  Collins,  J., 
delivered  a  judgment  in  which  he 
reviewed  all  the  previoiis  authorities, 
and  held  that  where  a  shipowner  has 
agreed  by  charterparty  that  his  ship 
shall  proceed  to  a  jiort  of  discharge 
and  there  deliver  the  cargo  unless 
prevented  by  the  excepted  perils, 
and  the  ship  has  to  put  into  a 
port  of  refuge  for  repairs,  the  ship- 
owner is  liable  in  damages  for 
abandoning  the  voyage  without  the 
consent  of  the  charterer,  unless  the 
effect  of  the  excepted  i)erils  was 
either  to  make  it  physically  impos- 
sible to  complete  the  voyage,  or  so 
clearly  unreasonable  as  to  be  impos- 
sible in  a  business  point  of  view. 
The  learned  judge  seems  fui'ther 
to  have  laid  down  the  rule  (p.  579) 
that  no  degree  of  injury  short  of 
a  constructive  total  loss  will  excuse 
the  shipowner  from  performing  the 
voyage,  where  the  cargo  is  not 
perishable  and  the  repairs  can 
be  executed  in  a  reasonable  time. 
Apparently,  this  means  a  construc- 
tive total  loss  of  the  ship,  estimated 
on  the  assumption  that  the  expense 
of  repairs  which  will  establish  a  con- 
structive total  loss  is  "an  exj^ense 
greater  than  the  value  of  the  shii5 
and  freight,  when  repaired  suffi- 
ciently to  complete  the  voyage " 
(p.  578).  The  judgment  of  Collins, 
J.,  awarding  damages  to  the  char- 
terers, was  affirmed  by  the  Court  of 
Appeal,  [1892]  2  Q.  B.  G52  ;  but  the 
suggestion  that  the  case  was  governed 
by  the  rules  applicable  to  the  ques- 
tion of  constructive  total  loss  is  not 
supported  by  the  judgments  :  and 
Lord  Esher,  M.  E.,    said  (p.  (358): 


"  The  doctrine  of  constructive  total 
loss  can  arise  (mly  between  an  under- 
wi-iter  and  his  assured.  There  is  no 
underwriter  concerned  in  the  present 
case,  and  the  doctrine  of  construc- 
tive total  loss  has  no  application 
to  it." 

The  duty  of  the  shipowner  to  the 
cargo-owner  was  also  considered  by 
Kennedy,  J.,  in  Hansen  v.  Dunn 
(1906),  11.  Com.  Cas.  100,  and  the 
learned  j  udge  stated  that  ' '  where  a 
ship  is  damaged  and  obliged  to  put 
into  an  intermediate  port  for  repairs, 
it  is  the  duty  as  well  as  the  right  of 
the  shipowner,  if  he  can  repair  his 
ship  without  unreasonable  sacrifice 
and  within  a  reasonable  time,  to 
repair  his  ship  and  carry  the  goods 
to  their  destination." 

The  legal  authorities,  therefore, 
do  not  afford  a  precise  answer  to 
the  question,  when  would  it  be  un- 
reasonable to  require  the  shipowner 
to  repair  his  vessel  and  carry  on  the 
goods  ?  It  has  not  been  decided  that 
he  is  always  bound  to  repair  when 
the  repairs  will  cost  less  than  the 
value  of  the  ship  when  repaifed, 
together  with  the  freight  which  she 
will  earn.  When  the  repairs  will 
cost  more  than  such  value  and 
freight,  it  would  pritud  fade,  no 
doubt,  in  general  be  unreasonable 
to  expect  the  shipowner  to  repair 
the  ship.  (See  De  Ouadra  v.  Sivann 
(1864),  11  C.  B.  (N".  S.)  772.) 

Mr.  Carver  argues,  however,  that 
if  the  freight  must  be  taken  into 
consideration,  freight  paid  in  advance 
ought  also  to  be  added,  on  the  ground 
that  it  would  be  anomalous  to  allow 
the  measiu-e  of  the  shijiowner's  obli- 
gation to  depend  upon  whether  the 
freight  has  been  paid  in  advance  or 


SECT.  LVI.J  CONDEMNATION. 


275 


still  acting  as  carrier  under  the  original  contract.  If  he 
does  this,  he  must  pay  the  hire  of  the  second  vessel,  and 
receive  his  freight  from  the  owner  of  the  cargo  as  if  the 
cargo  had  been  carried  in  his  own  ship.  If  the  ship- 
owner cannot  forward  at  a  profit,  his  duty  as  carrier  is 
at  an  end :  he  is  not  bound,  in  this  capacity,  to  hire  a 
second  vessel  at  his  own  expense  (o).  In  this  latter  case, 
however,  the  master's  duty  as  custodian  of  or  agent  for 
the  cargo  may  in  some  cases  oblige  him  to  tranship ; 
that  is  to  say,  if  there  are  no  means  of  communicating 
with  the  owner  of  the  cargo,  and  if  it  is  necessary  for 
the  preservation  of  the  cargo,  or  clearly  desirable  in  the 
cargo's  interest,  that  it  should  be  forwarded.  But,  then, 
the  transhipment  in  this  case  being  made  in  virtue  of 
the  captain's  agency  on  behalf  of  the  cargo,  the  freight 
of  the  forwarding  vessel,  with  the  expenses  of  loading 
the  cargo  on  board,  are  chargeable  to  tlie  cargo  (y>). 

Hence,  if  the  cost  of  forwarding'  is  less  than  the 
original  freight,  that  cost  must  fall  wholly  on  the  ship- 
owner,   who   thus   earns   his    freight ;    if    more,    it    falls 

uot.  "  Eitlier,  then,"  he  says,  "  tlie  (o)  It  has  never  been  definitely- 
freight  should  be  brought  into  the  decided  whether  or  not  the  ship- 
calculation  whether  it  is  payable  in  owner  is  bound  to  tranship  and  for- 
advance  or  upon  anival,  or  else  the  ward  the  goods  on  his  own  account, 
obligation  to  repair  and  proceed  if  he  can  do  so  at  a  profit  (see 
should  be  confined  to  cases  in  which  Shiptva  v.  Thoriddn  (1838),  9  Ad.  & 
the  value  of  the  repaired  ship  will  Ell.  314;  per  Cockburn,  C.  J.,  ^/'coocZ 
equal  the  cost  of  repairing."  (Carver,  v.  Sellar  (1879),  4  Q.  B.  D.  at  p.  359), 
§303.)  If ,  indeed,  the  freight  already  tliough  the  law  is  sometimes  stated 
paid  ought  to  be  taken  into  considera-  in  terms  which  indirectly  suggest 
tion,  so  also,  it  may  well  be  argued,  that  he  may  be  bound  to  tranship, 
ought  the  shipownei's  jiast  disburse-  {^jj)  Shipfoii  v.  Tltornton  (1838),  9 
nients  for  the  voyage.  In  I)t  Cuadru  Ad.  &  Ell.  314  ;  Gihhs  v.  Gray  (18uT), 
v.  Swaiin,  sivpra,  there  had  been  an  2  H.  &  N.  22  ;  Matthews  v.  Gibhs 
advance  of  freight,  and  it  was  not  (18G0),  3  E.  &  E.  303;  De  ('(tarJra 
suggested  that  the  advance  ought  v.  Su-aim  (1864),  16  C.  B.  (N.  S.) 
to  be  taken  into  consideration.  772;    Hansen    v.    Dnnn    (1906),    11 

Com.  Cas.  100. 


276  POET  OF  KEFUGE  EXPENSES.        [CHAP.  V. 

wholly  Tin  a  proper  case]  on  the  owner  of  the  cargo,  the 
shipowner  losinp:  his  freight. 

This  is  on  the  assumption  that  the  cargo  has  been 
forwarded  by  the  master,  without  express  intervention  on 
the  part  of  the  cargo-owner. 

The  English  law,  in  such  a  case,  gives  no  freight  to 
the  owner  bv  wav  of  compensation  for  the  part  of  the 
voyage  which  his  ship  lias  performed;  herein  diffeiing 
from  the  laws  of  most  other  maritime  states,  which  allow 
a  freight  pro  rata  itineris  peracti:  that  is,  in  the  proportion 
which  the  distance  performed  bears  to  the  distance  con- 
tracted for.  Our  law  requires  a  complete  performance 
of  the  contract,  either  in  the  oriainal  ship  or  one  lawf ullv 
substituted  for  it,  before  it  gives  the  shipowner  any 
freight  Avhatever  {q). 

If  n  portion  of  thefreight  has  been  absolutely  prepaid, 
the  question  on  whom  the  forwarding  expenses  are  to  fall 
will  depend  on  wliether  these  exceed  the  balance  of 
freight  due  to  the  shipowner  under  his  contract.  If  the 
owner  can  make  a  proiit  by  fonvarding,  he  forwards  at 
his  own   expense :    if    not,   the   cargo    is  forwarded   on 


(5)  riierhoom  v.  Chapman  (1844),  Q.  B.  D.  613 ;    on  appeal  (1877),  2 

13M.  &TV.  230.    "What  is  here  stated  Q.  B.  D.  423.     See  also  Hopper  v. 

is  to  be  taken  as  applicable  only  to  Burness  (1876),  1  C.  P.  D.   137;  HiU 

the  case  in  Avhict  the  ship  is  disabled  v.  Wilson  (1879),  4  C.  P.  D.  329 ;  The 

by  sea  peril.  Industrie,   [1894]  P.  oS  (C.  A.),  in 

TMien  there   has    been  a  volun-  -which   cases   jjro    rata    freight   was 

tarv    acceptance    of    the    goods    at  unsuccessftilly  claimed  on  goods  sold 

an  intermediate  port  under  circum-  at  a  port  of  distress. 
stances  from  which  it  may  be  inferred  The    merchant    wiU  be    Hable   to 

that  the  further  carriage  of  the  goods  pay  the  freight  in  full,  although  the 

was  dispensed  with,  a  contract  to  pay  cargo  did  not  reach  its  destination, 

pro    rata    freight    may  be  implied.  if  by  his  act  or  default  he  has  pre- 

(See    Osgood  v.    Groning    (1810),    2  vented  the  completion  of  the  voyage. 

Camp.  466  ;    The  Sohlomsten   (1866).  {Cargo  ex  Galam  (1863),  2  Moo.  P.  C. 

L.  E.  1  A.  &E.   293;  Metcalfy.  The  (X.   S.)   216;    of.   BJasco  v.  Fletcher 

Britannia    Ironworks    Co.    (1876),     1  (1863),  14  C.  B.  (X.  S.)  147.) 


SECT.  LVI.]  CONDEMNATION.  277 

account  of  the  owners  of  the  cargo,  and  the  balance  of 
freight  is  lost  to  the  shipowner  (r). 

Such  is  the  rule  for  ships  sailing  under  the  British  Rules  for 

foreign  ships. 

flag.  In  the  case  of  foreign-owned  ships,  it  may  be 
necessary  to  inquire  what  is  the  law  of  the  country  to 
which  they  belong. 

In  the  case  of  a  ship  damaged  and  taken  into  an 
intermediate  port,  the  extent  of  the  master's  obligation 
to  repair  the  ship,  or  to  forward  the  cargo,  and  his  right 
to  freight,  or  any  portion  of  it,  in  the  event  of  his  doing 
neither,  are  questions  wliich  may  depend  on  the  law  of 
the  country  where  the  ship  is  owned, — or,  as  it  has  been 
termed,  the  law  of  the  flag.  [The  general  rule  of 
English  law  is  that  the  validity  and  construction  of  a 
contract,  and  the  rights  and.  obligations  of  the  parties 
thereunder,  are  to  be  determined  by  the  lex  Loci  contractus^ 
i.e.,  the  law  of  the  country  where  it  is  made,  unless  from 
all  the  circumstances  it  may  be  inferred  that  the  contract 
should  be  governed  by  a  different  law  {s).  When  the 
contract  is  made  abroad  with  tlie  master  of  a  foreign 
ship,  it  may  generally  be  inferred  that  the  law  of  the 
flag  was  intended  to  govern  the  contract  (t).  The 
question,  however,  is  always  one  of  the  intention  of  the 
parties.  Tlius  where  the  ship  was  German,  but  the 
charter-party  was  made  in  England  in  an  ordinary 
Englisli  form,  and  the  charterers  were  English  merchants, 
the  Court  of  Appeal  held  that  the  parties  had  intended 

(?•)    It  has   sometimes    been   con-  not  now  acted  on  in  practice, 

tended  that  in  snch  a  case  the  for-  (s)  Lloyd  v.  Guibert  (1865),  L.  R. 

■warding  freight  and  charges  should  1    Q.  B.    115,   122   (Ex.   Ch.);  In   re 

be  apportioned  rateably  between  the  Missouri  S.S.  Co.  (1889),  42  Ch.  D. 

shipowner  and  cargo-owner,  in  the  821  (C.  A.). 

proportion  of  the  prepaid  freight  and  {t)  See   Lhnjd   v.    Guibert,    supra  ; 

the  freight  at  risk.     This,  however,  per  Brett,  L.  J.,  in  T/ic  Gaetano  and 

is  obviously  opposed  to  the  principles  Maria  (1882),  7  P.  D.  137,  147  (C.  A.); 

which  should  govern  the  case,  and  is  The  Baliia  (1864),  Br.  &  L.  292. 


278 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


to  make  an  Eiigli.sh  contract,  and  tliat  the  shipowner  was 
therefore  not  entitled  to  any  freight  on  damaged  goods 
properly  sold  at  a  port  of  distress,  although  by  German 
law  he  could  claim  the  full  freight  (u).  Yet  whatever 
be  the  law  which  governs  the  contract,  it  seems  well 
established  that  the  master's  authority  to  deal  with  the 
cargo  in  emergencies  at  a  port  of  distress  depends  on 
the  law  of  the  flag  (;v). J  Moreover,  so  far  as  regards 
incidents  of  the  contract  in  the  port  of  loading, — for 
example,  questions  as  to  the  proper  mode  of  taking  on 
board  and  stowing  the  cargo, — the  law  of  the  port  of 
loading  must  prevail.  So  far  as  regards  those  which 
have  reference  to  the  completion  of  the  voyage  at  the 
port  of  destination, — questions  as  to  the  delivery  of  the 
cargo, — the  law  of  the  place  of  destination  should 
govern  (.?/). 


(«)  The  Industrie,  [1894]  P.  58. 
See  also  Chartered  Mercantile  Bank 
of  India  V.  Netherlands  India  Steam 
Nav.  Co.  (1883),  10  Q.  B.  D.  521 
(C.  A.).  In  The  Wilhelm  Schmidt 
(1871),  25  L.  T.  (N.  S.)  34,  the  law 
of  the  place  of  delivery  was  held  to 
gov  ern  the  contract. 

{x)  See  IJoijd  v.  Guibert,  supra; 
The  Gaetanu  and  Maria,  supra  ;  The 
AwjvM,  [1891]  P.  328. 

{y)  Per  cur.  Lloydw.  Guibert  [l^Gb), 
L.  E.  1  Q.  B.  at  p.  126.  Owing  to 
the  frequent  necessity  of  taking  the 
laws  of  foreign  countries  into  con- 
sideration, some  account  of  the  laws 
of  most  foreign  countries  on  the  suh- 
jects  of  transhipment  and  ]>ro  rata 
freight,  is  given  in  the  Appendices. 

A  complication  may  arise,  in  case 
the  rule  of  the  flag  should  be,  that 
such  questions  are  to  be  determined 
by  the  law  of  the  port  of  destination. 
When  that  is  so,  the  true  way  of 
complying  with  the  law  of  the  flag 


may  be,  to  follow  some  other  law  ; 
to  follow  the  law  of  England,  if  the 
ship  is  bound  for  an  English  port. 
This  is  not  an  imaginary  case.  The 
law  of  Holland,  for  example,  does 
not  permit  a  shipowner  to  abandon 
his  contract  with  the  freighter  even 
when  the  ship  is  so  damaged  as  not 
to  be  worth  repairing :  he  must  in 
that  case,  if  he  will  not  rei:)aii',  pro- 
vide a  forwarding  vessel  at  his  own 
expense,  even  though  the  cost  of  it 
exceeds  the  original  freight.  But  it 
is  also  the  rule  of  the  Dutch  law  that 
questions  of  liability  for  freight  are 
to  be  governed  by  the  law  of  the 
place  of  destination.  When  there  is 
a  transhipment  at  an  extra  rate  of 
freight  from  a  Dutch  ship  under 
such  circumstances,  and  when  the 
cargo  reaches  its  English  destination 
and  there  arises  the  question  who  is 
to  pay  for  the  cost  of  forwarding. 
Lloyd  V.  Guibert  obliges  us  to  look  to 
the  law  of  Holland  as  our  guide ;  but 


SECT.  LVII.]  WAGES  OF  CREW.  279 

As  a  general  rule  it  may  perhaps  be  stated  that, 
wherever  the  law  of  a  country  gives  the  right  to  'pro 
rata  freight,  it  does  so  on  the  ground  of  a  termination  of 
the  contract  on  the  spot ;  so  that,  in  every  such  case,  the 
cost  of  transhipping  the  cargo,  and  the  forwarding 
freight,  must  fall  entirely  upon  the  owners  of  the  cargo. 

8  57.  There  is  one  subiect  which  remains  to  be  con-  Wages  of 

<J  "^  ^  crew  dunng 

sidered,  before  closing  this  chapter ;  namely,  the  right  of  delay, 
the  shipowner  to  recover  compensation  in  general  average 
for  the  wages  and  keep  of  his  crew. 

In  most  countries,  when  the  putting  into  a  port  of 
refuge  in  order  to  repair  is  treated  as  a  general  average 
act,  giving  a  right  to  compensation,  not  alone  for  the 
bare  cost  of  reaching  a  place  of  safety,  but  for  all 
expenses  incident  to  the  remaining  there  and  coming  out 
again,  the  law  recognizes,  as  one  of  those  expenses,  the 
shipowner's  loss  from  having  to  pay  and  feed  the  crew 
during  this  forced  suspension  of  the  voyage.  In  England 
it  is,  in  practice,  not  so. 

Two  reasons  are  offered  for  the  English  rule.  The 
first  i&,  that  the  general  average  is  terminated  so  soon  as 
the  port  of  refuge  is  reached,  so  that  the  expenses  in 
question,  it  is  contended,  do  not  really  form  part  of  the 
cost  of  the  general  average  operation,  but  of  the  delay 
in  port  in  order  to  repair,  which,  in  the  case  at  least  of 
accidental  damage,  falls  within  the  shipowner's  duty 
under  his  contract.  This  reason  does  not  apply,  when 
the  damage  which  necessitated  the  bearing  up  was  itself 
the  result  of  a  sacrifice  for  general  safety.  The  second 
reason    is    based    on    the    princi^ole,    that,   to    constitute 

the  law  of  IloUand  sends  us  back  to       is   chargeable   to   the  owner   of   the 
the  English  law ;  so  that,  apparently,       cargo, 
in  the  case  supposed,  the  extra  freight 


280 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


general  average,  an  expenditure  must  be  extraordinary 
in  its  kind,  not  tlie  mere  augmentation  of  an  ordinary 
expenditure.  The  services  of  the  crew  during  the  whole 
voyage  are  due  to  the  cargo,  being,  like  the  use  of  the 
ship  itself,  purchased  by  the  engagement  to  pay  freight. 
The  shipowner  must  take  the  chance  of  a  longer  or 
shorter  vovaore. 

The  English  rule  has  been  sanctioned  by  a  series  of 
decisions  in  our  courts,  which,  though  unsatisfactory 
enough  as  regards  the  reasons  on  which  they  are  based, 
having  for  the  most  part  been  given  at  a  time  when  the 
subject  of  general  average  was  little  understood,  must 
now,  it  is  presumed,  be  regarded  as  of  binding  autho- 
rity (.e). 


(2)  The  oldest  reported  decisions 
on  this  point  are  those  of  Lateward 
V.  (Jiirlintj,  in  1776,  and  Eden  v. 
Poole,  in  1785  (Park,  Ins.  8th  edit, 
pp.  117,  288),  both  of  which  were 
actions  brought  by  the  owner  of  the 
ship  ;  and,  in  the  former  case.  Lord 
Mansiield  thought  it  a  sufficient 
answer  to  the  claim,  that  the  thing 
insru-ed  was  merely  the  body  and 
tackle  of  the  ship,  and  that  such  an 
insurance  did  not  cover  the  crew's 
wages,  that  being  a  distinct  subject- 
matter.  And  the  like  reasoning  was 
used  by  his  lordship  and  by  Buller, 
J.,  in  Robertson  v.  Ewer,  in  1786  (1 
Term  Eep.  127).  "  Here,"  said  the 
latter,  "the  ship  itself  was  safe; 
and  the  court  only  look  to  the  thing 
itself  which  is  the  subject  of  insur- 
ance ;  and  the  wages  and  jiro visions 
are  no  part  of  the  thing  insui'ed." 
In  Power  v.  Whitmore  (1815),  4 
M.  &  S.  141,  where  one  item  of  the 
claim  for  general  average  consisted 
of  the  wages  of  the  master  and  crew 
during  two  periods  of  detention  at 
the  port  of  refuge,   the  earlier  one 


for  repairs  and  the  later  in  conse- 
quence of  bad  weather,  Lord  Ellen- 
borough  thus  briefly  dismissed  the 
claim  :  "  General  average  must  lay 
its  foundation  in  a  sacrifice  of  a  part 
for  the  sake  of  the  rest;  but  here 
was  no  sacrifice  of  any  part  by  the 
master,  but  only  of  his  time  and 
patience."  So  the  matter  remained 
until  the  trial  of  De  Vaux  v.  Salvador, 
in  which  case  the  question  was  again 
raised,  not  directly  as  one  of  general 
average,  but  in  an  action  against  the 
underwriter  on  ship ;  and  the  imme- 
diate point  at  issue  was,  whether  the 
wages  of  the  crew,  during  a  detention 
to  repair,  could  be  added  to  the  cost 
of  repaii-s,  to  make  up  the  required 
percentage  of  a  claim.  The  claim 
w'as  rejected  by  Lord  Denmau  on  the 
following  grounds :  That,  though  the 
authority  against  it  rested  at  first  on 
a  mere  dictum  of  Lord  Mansfield, 
yet  being  the  dictum  of  so  great  a 
master  of  insurance  law,  having  been 
sanctioned  by  Mr.  Justice  BuUer, 
himself  a  high  authority,  having  been 
accepted  by  the   text  writers,  and. 


SECT.  LVII.J  WAGES  OF  CREW.  281 

It  would  certainly  Imve  been  more  satisfactory  if 
we  could  say  that  the  arguments  in  favour  of  the  allow- 
ance of  wages  and  provisions  had  been  laid  before,  and 
at  least  listened  to  by,  the  Judges  of  the  English  courts. 
There  is  really  something  to  be  said  in  support  of  a 
])ractice  which  is  of  great  antiquity,  and  very  general 
amongst  seafaring  communities. 

Let  us  confine  ourselves  to  the  case  of  a  ship  which 
has  put  into  port  to  repair  damage  which  is  itself  tlie 
subject  of  general  average. 

The  shipowner  contends  that  he  is  entitled  to  an 
indemnity  for  his  loss  of  the  ship's  employment  during 
the  detention  caused  by  the  sacrifice  made  for  the 
common  safety.  If  he  is  entitled  to  a  complete  compen- 
sation for  such  loss,  this  ingredient  in  it  is  too  important 
to  be  left  out  of  sight.  His  right  to  compensation  for 
loss  of  time  is  recognized  by  the  courts  when  it  is  a 
question  of  damages  under  a  collision  suit.  In  such  a 
case  he  receives  compensation  for  it,  under  the  name  of 
demurrage. 

But,  it  may  be  objected,  if  the  claim  is  for  demurrage, 
why  limit  this  to  the  cost  of  keeping  the  crew  ?  Why  not 
also  bring  in  the  loss  of  time  ?     The  answer  is  :  The 

iibove  all,  having,  although  a  case  of  by  tlio  mere  lapse  of  time,  as  firmlj 

everyday  occurrence,  passed  unques-  and  unquestionably  established.     It 

tioned  for  nearly  seventy  j^ears,   it  is  so  treated  in  1867  by  the  court,  in 

must  now  be  regarded  as  fullj^  es-  Wilson    v.    The    Bank    of    Victoria, 

tablished,  and  admitting  of  no  doubt.  Blackburn,  J.,  alluding  to  the  subject 

{Be   Vau.r  v.  Salvador  (1836),  4  Ad.  incidentally,  as  a  matter  settled  and 

&   Ell.   420.)      So  much  is  there  of  well  known.     (See   L.    E.   2    Q.    B. 

accident,    we    may   remark,    in    the  203,  at  p.  212.     Sec,  however,  contra, 

formation  of   law  I      This  important  the  passage  in  the  judgment  of  the 

question,  in  which  the  law  of  England  Court  of  Appeal  va.  Atimodw.  Se/iar 

differs  from  that  of  most  other  mari-  (1880),  o  Q.  B.  D.  286,  at  p.  291  ; 

time    states,    has    never    yet    been  ante, -p.  22S;  approved  by  Barnes,  J., 

argued  out,  even  in  the  most  rudi-  in    The   Leitrim,    [1902]   P.    256,    at 

mentary    manner,    in    the    English  p.  268.) 
courts ;  and  yet  it  must  be  regarded, 


282 


PORT  OF  REFUGE  EXPENSES. 


[chap.  v. 


sliipowner's  loss  of  time  is  balanced  by  a  corresponding- 
loss  on  the  part  of  the  owners  of  the  cargo.  The  delay 
is  or  may  be  prejudicial  to  the  latter  in  two  ways  :  they 
jnay  lose  their  market — but  against  this  may  be  set 
the  chance  of  a  rise  in  the  market  during  the  delay  ; 
they  also  lose  tlie  interest,  during  the  delay,  on  tlie  cost 
of  their  merchandise.  This  loss  of  interest  bears  the 
same  proportion  to  the  value  of  the  goods  which  the 
shipowner's  loss,  by  being  deprived  of  the  use  of  the 
ship,  bears  to  the  value  of  the  ship.  At  any  rate,  if  not 
always  precisely  the  same,  these  two  losses  may  not 
unfairly  be  set  off  against  one  another  («).  If  insurance 
be  left  out  of  sight,  it  makes  little  or  no  difference,  as 
between  the  owners  of  cargo  and  the  owner  of  the  ship, 
whether  both  these  losses  are  brought  in,  or  both  left  out. 
But,  over  and  above  this  loss  of  time,  the  shipowner  has 
to   bear   an    additional  burden   by  having  to  pay  and 


{(i)  This  argument  is  .supported  by 
tlie  decision  of  Barnes,  J.,  in  The 
Leitrim,  [1902]  P.  256.  In  that  case 
the  shiji  was  let  by  a  time  charter, 
■which  contained  the  usual  clause 
providing  that  the  hire  should  cease 
in  case  of  damage  preventing  the 
working  of  the  vessel  for  more 
than  twenty-four  hours,  and  the 
shipowners  claimed  for  a  loss  of 
time-freight  while  the  ship  was  un- 
dergoing general  average  repairs  ; 
a  practice  of  average  adjusters  not  to 
allow  such  a  loss  in  general  average 
was  proved,  and  the  learned  judge 
held  that  the  practice  was  right. 
"  In  cases  like  the  present,"  said  the 
learned  judge,  "  the  loss  of  time  is 
common  to  all  the  jiarties  interested, 
and  all  suffer  damage  by  the  delay, 
so  that  the  damages  by  loss  of  time 
may  be  considered  proportionate  to 
the  interests,  and  may  be  left  out  of 


consideration.  Were  this  otherwise, 
great  inconvenience  would  arise,  and 
enormous  difficulty  be  found  in  at- 
tempting to  ascertain  what  was  the 
proper  amount  of  loss  on  each  of  the 
numerous  interests  which  go  to  make 
up  a  shipping  adventure."  Anothei' 
ground  on  which  the  learned  judge 
held  that  the  claim  could  not  be 
maintained  was,  that  the  loss  of 
freight  under  a  time  charter  caused 
by  delay  is  the  result  of  an  "  acci- 
dental circumstance  "  peculiar  to  the 
shipowner  and  the  time  charterer, 
and  arising  out  of  the  contract  be- 
tween thorn,  with  which  the  cargo- 
owner  is  not  concerned.  (See  also 
per  Bigham,  J.,  in  Anglo-Argentirie 
Live  Stock  Agency  v.  Temperley  8.8. 
Co.,  [1899]  2  Q.  33.  403,  412;  Scrut- 
ton  on  Charterparties,  0th  edit., 
p.  254.) 


SECT,  LVII.J  WAGES  OF  CREW.  283 

maintain  his  crew,  who  would  be  paid  off  at  the  end 
of  the  voyage.  He  is  not  really  compensated  for  the 
sacrifice  which  necessitated  the  delay,  unless  this  outlay 
is  made  good  to  him. 

If,  then,  at  any  future  time  the  courts  should  lay 
down  the  principle  that,  when  there  is  a  delay  caused  by 
a  sacrifice,  the  loss  thereby  occasioned  is  to  be  completely 
compensated  in  general  average,  it  may  become  necessary 
to  reconsider  the  present  rule  as  to  the  crew's  wages  and 
provisions.  It  is  by  no  means  improbable  that  in  this 
respect  a  distinction  may  be  drawn  between  the  case  of 
putting  into  port  to  repair  accidental  damage,  and  that 
in  which  the  putting  in  has  been  necessitated  by  a 
sacrifice  for  the  common  safety. 

At  present,  however,  we  do  not  seem  to  be  ripe  for 
such  a  change ;  the  exclusion  from  general  average  of 
the  crew's  wages,  during  the  delay  in  the  course  of  a 
voyage  not  terminated  by  wreck,  must  be  taken  to  be 
a  settled  rule  (b). 

The  question,  however,  still  remains  undetermined  Crew's  wages 
in  our  courts,  to  what  extent  there  may  be  a  claim  for  shipwreck. 

(/))  In  Aitglo-Argentine  Live  Stock  of    the   York-Antwerp   Rules.     The 

Agency  \.  Temperley  S.S.  Co.,  [1899]  cattle  had  not  been  landed ;  and  even 

2  Q.  B.  403,  a  claim  was  made  for  a  if  they    had  been,  he  said  that  he 

contribution  in  respect  of  the  fodder  would   have  had    great  difficulty  in 

supplied  to  the  plaintiffs' cattle  during  saying  that  the  cost  of  the  fodder 

the  ship's  stay  in  a  jiort  of  refuge  to  could     jDroperly    be    called    storage 

repair  damage  to  the  ship.     Such  a  charges. 

claim  seems  hardly  maintainable  An  attempt  was  also  made  to  obtain 
under  the  common  law,  w^hile  con-  contribution  for  the  keep,  during  the 
tribution  for  the  wages  and  provi-  stay  in  port,  of  the  cattlemen  em- 
sions  of  the  crew  is  disallowed,  and  j)loyed  by  the  plaintiffs  for  the 
Bigham,  J.,  rejected  it  on  the  ground  voyage,  on  the  ground  that  they  were 
that  it  was  a  loss  by  delay,  on  which  members  of  the  crew  within  the 
a  claim  in  general  average  cannot  be  meaning  of  Rule  XI.  of  the  York- 
founded.  The  learned  judge  also  Antwerp  Rules ;  but  this  part  of  the 
held  that  the  cost  of  the  fodder  was  claim  also  failed.  For  another  part 
not  covered  by  the  words  "  all  storage  of  their  claim,  on  wliich  the  plaintiffs 
charges  on  such  cargo"  in  RuleX.  (c)  succeeded,  see  infra,  p.  288. 


284  PORT  OF  REFUGE  EXPENSES,  [CHAP.  V. 

the  waffes  of  the  master  and  crew  if  these  are  retained 
for  the  general  service  after  the  period  at  which  the 
contract  with  the  crew,  as  well  as  the  contract  to  com- 
plete the  voyage,  have  been  terminated  by  the  wreck 
or  condemnation  of  the  ship. 

On  principle  it  seems  clear  that,  when  there  has 
come  a  time  at  which  the  owner  is  at  liberty  to  discharge 
the  master,  or  the  master  to  discharge  his  crew,  on  the 
ground  that  their  duties  are  terminated  by  the  perma- 
nent incapacity  of  the  ship  to  continue  her  voyage,  the 
shipowner's  obligation  towards  the  owners  of  the  cargo 
to  retain  his  crew  must  terminate  likewise.  If,  there- 
fore, the  master  or  crew  are  retained  beyond  that  period, 
they  stand  reall}'  in  the  same  position  as  labourers  who 
may  be  hired ;  and,  if  they  are  retained  to  save  the 
cargo,  their  wages  must  be  charged  against  the  cargo, 
precisely  as  the  hire  of  labourers  would  have  been.  The 
question  is,  then,  what  is  the  period  at  which  the  master 
or  the  crew  may  lawfully  be  thus  discharged  ? 

This  question  must  be  determined  by  reference  to 
the  following  clauses  in  the  Merchant  Shipping  Act, 
1894  (57  &  58  Vict.  c.  60)  :— 

§  157  (1).  "The  rigiit  to  M'ages  shall  not  depend  on 
the  earning-  of  freight;  and  everj-  seaman  and  apprentice 
who  would  be  entitled  to  demand  and  recover  any  wages 
if  the  ship  in  which  he  has  served  had  earned  freight, 
shall,  subject  to  all  other  rules  of  law  and  conditions  applic- 
able to  the  case,  be  entitled  to  claim  and  recover  the  same, 
notwithstanding  that  freight  has  not  been  earned;  but  in 
all  cases  of  wreck  or  loss  of  the  ship,  proof  that  the  sea- 
man has  not  exerted  himself  to  the  utmost  to  save  the 
ship,  cargo,  and  stores,  shall  bar  his  claim  to  wages." 

§  158.  "Where  the  service  of  a  seaman  terminates 
before  the  date  contemplated  in  the  agreement  by  reason 
of  the  wreck  or  loss  of  the  ship,     ...     he  shall  be 


SECT.  LVII.J  WAGES  OF  CREW.  285 

entitled  to  wages  up  to  the  time  of  such  termination,  but 
not  for  any  fiu'ther  period."' 

If,  then,  the  service  of  a  seaman  is  terminated  by 
reason  of  the  ship's  wreck — in  other  words,  if  the  ship's 
wreck  renders  it  impossible  for  him  to  render  any  further 
service,  either  in  his  proper  capacity  as  a  mariner,  or  in 
the  duty,  superimposed  by  the  Act,  of  saving  tlie  ship, 
cari>o,  and  stores, — his  rio'ht  to  wag-es  terminates  at  the 
same  time,  and  he  at  that  point  of  time  ceases  to  be  the 
servant  of  the  shipowner  under  his  articles.  This  raises 
two  questions : 

First,  what  is  that  "  wreck  or  loss  of  the  ship  " 
which  has  this  effect  ? 

The  term  "wreck,"  in  connection  Avith  this  subject,  Seamen's con- 

.  tract  does  not 

must  no  doubt  be  understood  as  including  all  cases  of  t.rminate 

.,,,..,  .      until  con- 

ascertamed  permanent  incapacity  ot  the  ship  tor  navi-  demnation  of 

gation.     Whether  the  ship  is  so  wrecked  as  to  be  broken 

in  pieces,  or  simply  damaged  to  such  an  extent  as  not  to 

be  worth  repaiiing,  can  make  no  difference,  so  soon  as 

the  hopelessness  of  her  condition  has  been  ascertained. 

This  hopelessness  must  be  ascertained,  however,  before 

the  crew's  services   can   be  reiz:arded  as  at  an  end.     It 

could  never  have  been  the  policy  of  the  law  to  allow  that, 

so  soon  as  a  shi])  had  struck  the  ground,  or  otherwise 

been  placed  in  a  situation  which  might  result  in  wreck, 

the  master  should  have  the  right  to  dismiss  the  crew,  or 

the  crew  to  dismiss  themselves,  without  waiting  to  find 

out  whether  or  no  there  would  be  a  possibility  of  saving 

or  repairing  her.      It  is  in  fact  to  prevent  such  a  mischief, 

that  the  obligation  to  assist  in  saving  the  ship  and  cargo 

is  imposed  upon  the  crew.     Even  where  their  assistance 

for  this  latter  purpose  is  not  required,  it  seems  plaiidy 

reasonable  that  the  master  should  be  obliged  to  retain 


^86  PORT  OF  REFUGE  EXPENSES.        [CHAP.  V. 

his  crew,  until  it  is  known  witli  certainty  that  the  ship 
is  not  worth  repairing  (c). 

Hence  we  arrive  at  the  rule,  which  is  adopted  in  the 
practice  of  adjusters,  that,  in  cases  of  actual  or  constructive 
total  loss,  the  master  is  not  at  liberty  to  dismiss  the  crew 
until  the  ship  has  been  properly  condemned  as  irrej^arable 
or  not  worth  repairing.  The  usual  form  of  condemnation 
is  by  a  survey  held  by  authorized  or  at  least  disinterested 
persons. 

Secondly,  in  case  the  ship  has  been  condemned,  or 
clearly  proved  irreparable,  while  the  cargo  is  still  on 
board  or  at  hazard,  is  the  master  bound,  under  §  157  (1) 
of  the  Act — or  is  he  merely  at  liberty,  if  he  pleases — to 
retain  his  crew  for  the  purpose  of  saving  the  cargo  ? 

The  crew  are  engaged  primarily  for  the  purpose 
of  navigating  the  shij:).  After  this  duty  is  absolutely 
at  an  end,  it  would  seem  reasonable — apart  from  express 
legislation,  and  apart  from  considerations  of  general 
policy — to  hold  that  the  engagement  is  terminated, 
and  that  neither  party  is  any  longer  bound  by  it.  This 
view  should  be  adhered  to,  it  is  conceived,  except  so  far 
as  we  are  restrained  by  positive  legislation  or  express 
decisions  from  so  doing.  It  is  clear  that  in  such  a  case 
the  master  has  the  right  by  statute  to  insist  on  retaining 
the  crew,  if  he  requires  their  assistance  to  save  the  cargo 
and  stores.  But  there  is  nothing  in  the  Act  to  show  that 
he  is  bound  to  retain  them  for  this  purpose,  should  he  not 
wish  to  do  so.  It  may  be  concluded,  then,  that  although 
he  has  the  right  to  keep  the  crew,  he  is  not  bound  to  do 

(c)  In    The    Woodliorn    (1891),    92  -nriters.     Although  the  reijort  is  not 

L.  T.  Jour.   113,  the  facts  were  that  clear  on  the  point,  wages  were  appa- 

the  ship  took  fire  and  was  scuttled.  rently  only  held  to  be   due  to  the 

The  seamen  were  landed   and   sent  crew  until  the  time  when  they  were 

home.      Afterwards    the    ship    was  landed, 
raised  and  abandoned  to  her  under- 


SECT.  LVII.J 


WAGES  OF  CREW. 


287 


SO.  He  may  discharge  them,  and  hire  labourers  in  their 
place :  and,  if  he  may  do  this,  without  being  liable  to  be 
charged  by  the  owner  of  the  cargo  with  a  breach  of  his 
contract,  it  follows  that  he  ma}'  hire  these  same  seamen 
as  labourers,  at  the  cost  of  those  who  have  to  pay  for 
saving  the  cargo, — that  is,  either  as  general  average,  or 
as  a  special  charge  on  the  owners  of  the  cargo,  according 
to  circumstances  [d). 


{d)  It  may  be  objcL'ted  that  this 
view  is  one-sided  as  regards  the  crew, 
and  that  these,  if  bound  to  remain  if 
required,  ought  to  have  the  right  to 
insist  on  remaining,  should  they  wish 
to  earn  wages  in  this  manner.  But 
such  one-sided  arrangements  are  not 
imknown  to  the  Lxw.  The  privilege 
of  a  shipowner  to  forward  cargo  by 
another  vessel,  if  he  can  make  a 
profit  by  it,  while  he  is  not  bound 
to  forward  unless  he  pleases  (see 
(tide,  pp.  272—274),  is  a  case  in 
point.  So  likewise  is  the  right  of 
a  master  to  retain  a  2:>ilot  in  a  river 
or  roadstead,  on  2)ayment  of  a  fixed 
rate  per  day,  while  he  is  not  bound 
to  retain  him  unless  he  pleases. 
Viewed  as  a  question  of  general 
policy,  it  is  expedient  that  the  master 
should  have  the  power  to  keep  liis 
crew,  in  cases  of  urgency,  for  the 
l^urpose  of  saving  the  jtroperty.  Had 
he  no  such  power,  there  would  be 
danger  of  the  crew's  leaving  him  at 
a  moment  of  distress,  or  setting  up 
unreasonable  demands  for  salvage  ; 
and  even,  jwssibly,  conniving  or 
assisting  at  a  wrecking  of  a  ship,  for 
the  sake  of  the  gain  they  might  thus 
expect.  On  the  otlier  hand,  there  is 
no  such  argument  from  policy  in 
favour  of  giving  the  crew  a  right  to 
remain,  against  the  desire  of  the 
captain,  to  work  as  labourers  after 
their  proper  duties  as  mariners  are 


at  an  end. 

In  the  case  of  The  Warrior,  where 
the  crew  of  a  shiji  which  had  been 
wrecked  on  one  of  the  Canarj^  Islands 
had  been  discharged  by  the  master, 
while  the  ship  was  lying  on  the  beach, 
tilk'd  with  water,  and  irrecoverably 
wrecked,  but  not  bi'oken  up,  and  with, 
her  cargo  still  on  board,  and  the  crow 
were  subsequently  employed  to  save 
the  cargo  and  stores.  Dr.  Lushington 
allowed  the  crew  to  recover  salvage. 
At  the  trial,  this  was  resisted  on  the 
grounds  that  the  crewwero  not  legally 
discharged,  and  that  the  services  ren- 
dered by  them  were  no  more  than 
they  were  bound  to  perform  \)j  the 
ship's  articles.  But  Dr.  Lushington 
in  giving  judgment  in  their  favour, 
said  that  the  master  had  jjow^er  to 
discharge  the  seamen  under  such  cir- 
cumstances if  he  honestlv  thou2:ht 
fit  to  do  so  ;  and  although  the  pro- 
priety of  his  exercising  this  power  in 
the  present  case  might  be  doubted, 
since  the  master  must  have  known 
that  he  was  entitled  to  have  the  ser- 
vices of  the  crew  to  recover  as  imich 
of  the  ship  and  her  cargo  as  could  bo 
saved,  still,  admitting  that  he  had 
judged  wrongly,  the  crew  were  not 
to  be  aifected  by  the  misconduct  of 
the  master,  and,  having  been  law- 
fully discharged,  it  was  open  to  them 


to  work  as  salvors. 
(1862),  Lush.  476.) 


( Tlie   Warrior 


288 


PORT  OF  REFUGE  EXPENSES. 


[chap.  V. 


Losses  other  fgo  far,  ill  this   chapter,  the   losses   consequent  on 

than  expendi-  p  p  o  ^   •    i  -i        •  i 

tures  conse-    putting  iuto  a  port  01  refuge,  lor  which  contribution  has 

quent  on  tit-  t  i  i  t 

putting  into     bceii  allowed  in  general  average,  have  been  expenditures; 

refuge.  but  in  ouc  rcccnt  case  a  different  kind  of  loss  was  allowed 

under  unusual  circumstances.  The  facts  were  that  Th^ 
Edenhrii^ge  took  on  board  in  the  River  Plate  a  deck  cargo 
of  cattle  and  sheep  for  England,  under  a  contract  which 
provided  that  the  vessel  should  on  no  account  touch  at 
any  Brazilian  or  Continental  ports  before  landing  her 
live  stock.  Soon  after  sailing  she  sprung  a  leak,  and  as 
the  water  could  not  ])e  kept  down,  the  master  put  into 
Bahia,  a  Brazilian  port,  for  repairs.  The  consequence 
was  that,  by  reason  of  an  Order  in  Council  then  in  force, 
the  cattle  could  not  be  landed  in  England,  and  they 
were  taken  instead  to  Antwerp,  and  realized  much  lower 
prices  than  they  would  have  fetched  in  England.  Mr. 
Justice  Bigham  held  that  the  owners  of  the  live  stock 
were  entitled  to  recover  in  general  average  the  difference 
in  prices,  as  a  loss  which  was  the  direct  and  immediate 
consequence  of  the  general  average  act.  "  The  moment 
the  vessel  touched  the  Brazilian  port,"  he  said,  "the 
plaintiffs'  property  was  ?/>50  facto  rendered  of  less  value 
than  it  was  before,  because  by  that  act  the  plaintiffs 
were  deprived  of  one  of  their  means,  and  that  the  best, 
of  realizing  their  property  "  [c).\ 

(e)    A')i(jl(j-Argc)dine    Live    Stock   Aijency    v.    Tonpcrlcy    S.S.    Co.,    [1S99] 
2  Q.  B.  40;3. 


I 


•289 


TART  11. 

ADJUSTMENT  OF  GENERAL  AVERAGE. 


CHAPTER  VL 

TIME,    PLACE,   AND   STATE  OF  FACTS  WHICH   AKE  TO  KEGULATK 

THE  ADJUSTMENT. 

SECT.  I'AQE 

58.  Proper  pla('e,  when  voyage  accomplished,  is  jjort  of  destinatiun .  .    290 

59.  When  voyage  broken  up.,  average  should  be  adjusted  on  the  sjjot  .   293 

60.  What  justifies  hrealdng  up  voyage    294 

61.  Effect  of  subsequent  accident  oti  contribution   ....     300 

62.  Voyages  with  cargo  destined  fior  two  or  more  ports     313 


Having  now  set  forth  in  detail  the  several  losses  or 
expenses  which  are  the  proper  subjects  of  general  average, 
we  come  to  the  mode  in  which  such  losses  or  expenses 
are  to  be  replaced  by  contribution. 

This  subject  falls  naturally  under  three  heads.  We 
are  to  consider,  first,  what  is  the  proper  time  and  place 
for  adjusting  a  general  average;  secondly,  in  what 
manner  the  amount  to  be  made  good,  in  respect  of  each 
kind  of  loss  or  expense,  is  to  be  computed ;  and  thirdlv, 
on  what  property,  and  after  what  manner  of  determining- 
its  value,  the  contribution  is  to  be  levied. 

In  treating  each  of  these  three  heads,  I  shall  begin 
by  simply  setting  forth  such  decisions  of  the  English 
courts  as  directly  bear  upon  them,  and  then  proceed  to 

L.  u 


290 


TIME,  PLACE,  ETC.,  WHICH  REGULATE       j_CHAP.  VI. 


state  what  is  the  existing  practice  amongst  adjusters. 
By  keeping  these  two  things  as  separate  as  possible,  I 
shall  better  enable  the  reader  to  judge  liow  much  of  what 
we  now  do  rests  on  autliority  that  must  be  adhered  to, 
and  liow  much  is  at  present  fairly  open  to  discussion, 
and  mav,  if  necessary,  be  amended. 

We  begin  with  the  time  and  place  of  adjustment; 
which  properly  comes  first,  since  this  must  regulate  the 
other  two. 


Time  and 
place  of  ad- 
justment. 


Himonds  v. 
White. 


§  b'^.  The  determining  of  the  proper  time  and  place 
for  an  adjustment  is  important  for  two  reasons.     In  the 
first   place,    upon    this    depends    the    law    which    must 
regulate  the  adjustment;  an  important  question,  seeing 
that    the    laws    of    different   countries,   with  respect  to 
general  average,  differ  materially.     Secondly,  upon  this 
likewise    de^Dends,    or  may  depend,   the   state    of   facts 
which  is  to  be  taken   as  the   basis   of  the   adjustment. 
The  question,  for  example,  whether  contribution  is  to  be 
levied  on  the  values  of  the  property  as  existing  at  the 
time  of  the  sacrifice,  or  the  values  as  they  may  be  upon 
the  termination  of  the  adventure,  is  one  that  evidently 
must  to  some  extent  depend  on  the  time  and  place  at 
which  the  liability  for  general  average  is  made  to  attach. 
The  first  case  in  Avhich  this  question  came  directly 
before   the   courts,    is    that   of    Simonds   v.     White.     An 
English  ship^^er  and  owner  of  cargo,  carried  from  Gib- 
raltar to  St.  Petersburg  under  an  ordinary  bill  of  lading, 
had  been  compelled  at  St.  Petersburg,  in  order  to  obtain 
possession    of    his  goods,   to   pay   a   sum   of   money  as 
contribution  towards  a  general  average,  resulting  from 
the  ship's  having  been   obliged  to  put  into  a  port  of 
refuge   on   the  voyage.     This  contribution,   it  was  ad- 
mitted, was  assessed  correctly  according  to  the  law  of 


SECT.  LVIII.]       THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  '^^1 

Russia,  but  amounted  to  a  larger  sum  than  tlie  merchant 
would  have  been  liable  for  had  the  average  been  ad- 
justed according  to  English  law.  The  ship  was  owned 
in  this  country :  and  the  merchant  sued  the  shipowner 
for  the  amount  which  he  had  thus  been  compelled  to  pay 
in  excess  of  his  liability  under  English  law.  The  court 
pronounced  that  the  shipowner  was  not  liable. 

Abbott,   C.  J.,   in   delivering  the   iudgment  of  the  when  voyage 

'  ^  -111  completed,  is 

court,  said  that  there  was  one  point  upon  which  the  laws  port  of  desti- 

nation. 

of  all   maritime   states   were  agreed,   namely,   tliat  the 
place  at  which  a  general  average  should  be  adjusted  was 
the  place  of  the  shi})'s  destination  or  delivery  of  the  cargo. 
All  were  agreed,  likewise,  in  holding  that  the  master  was 
not  compellable  to  part  with  the  possession  of  the  goods 
until  the  sum  contributable  by  them  should  be  either 
paid  or  secured  to  his  satisfaction.     This  right  of  lien 
could    of    course    only  be    effectually   exercised   at    the 
termination  of  the  adventure.     It  being  admitted  that 
the  average  should  be  adjusted  at  that  place,  the  learned 
judge  proceeded  to  point  out  that,  unless  it  were  to  be 
adjusted   according   to   the  law  in  force  at  that  place, 
great  inconveniences   would    ensue.     The   cargo   might 
belong,  partly  to  British  subjects,  partly  to  foreigners: 
were  there  to  be  as  many  different  adjustments  as  nation- 
alities ?     There  must  be  some  one  rule  for  all:  and  tliat 
which  was  known,  and  could  be  administered,  on  the 
spot,  was  clearly  the  most  convenient.      '"'The  shipper 
of  goods,"  said  his  lordship  in  conclusion,   "tacitly,  if 
not  expressly,  assents  to   general   average  as  a  known 
maritime  usage,  which  may,  according  to  the  events  of 
the  voyage,  be  either  beneficial  or  disadvantageous  to  him. 
And  by  assenting  to  general  average  he  must  be  under- 
stood to  assent  also  to  its  adjustment  at  tlie  usual  and 

u2 


292 


TIME,  PLACE,  ETC.,  WHICH  KEGULATE       [CHAP.  VI. 


Lloyd  V. 
Guibert. 


proper  place  [a) ;  and  to  all  this  it  seems  to  us  to  be  only 
an  obvious  consequence  to  add  that  he  must  be  understood 
to  consent  also  to  its  adjustment  according  to  the  usage 
and  law  of  the  place  at  which  the  adjustment  is  to  be 
made,"  For  these  reasons  it  was  determined  that,  as 
between  the  shipowner  and  the  owner  of  cargo,  the 
adjustment,  being  admittedly  correct  according  to  the 
law  of  Russia,  must  be  regarded  as  final  (b). 

In  Lloyd  v.  Guibert^  in  the  Exchequer  Chamber,  a 
case  already  referred  to  {bh),  the  court,  while  laying  down 
that  for  many  purposes  the  law  of  the  flag  must  be 
resorted  to,  in  order  to  determine  the  rights  under  a 
contract  of  affreightment,  expressly  stated  that  this  was 
not  to  be  the  rule  for  general  average.  "The  adjust- 
ment of  a  general  average  at  the  port  of  discharge, 
according  to  the  law  prevailing  there,  is  binding  upon 
the  shijDowner  and  the  merchant,  as  they  must  be  taken 
to  have  assented  to  adjustment  being  made  at  the  usual 


{(j)  In  Wavertree  Sailiiui  Hliip  Co. 
V.  Love,  [1897]  A.  C.  373,  it  was 
contended,  chiefly  in  reliance  on  this 
passage,  that  the  shipowner  was 
bound  to  have  an  average  statement 
drawn  up  by  an  average  adjuster  at 
the  jiort  of  discharge ;  but  the 
Privy  Council  held  that  a  shipowner 
may  make  up  the  statement  himself, 
and  is  not  bound  to  employ  an 
average  adjuster  either  there  or  else- 
where. The  words  "  at  the  usual 
and  proper  place,"  said  Lord  Her- 
schell  ia  delivering  judgment,  "do 
not  refer  to  the  preparation  of  an 
average  statement,  but  the  actual 
settlement  and  adjustment  of  the 
general  average  contributions."  In 
this  case  the  shipowners  in  England 
instructed  a  Liverpool  firm  of  average 


adjusters  to  draw  up  the  statement ; 
the  port  of  discharge  was  Sydney, 
New  South  Wales,  and  there  was  no 
allegation  that  as  regards  general 
average  the  law  of  Sydney  differed 
from  that  of  England.  The  action 
arose  out  of  the  refusal  of  the  con- 
signees, who  had  agreed  bj''  an 
average  bond  to  furnish  particulars 
of  the  value  of  the  goods  delivered, 
to  supply  such  particulars  to  the 
Liverpool  firm. 

{h)  Simonds  v.  White  (1824),  2 
B.  &  C.  805.  .See  also  LaJgUsh  v. 
Davv/soH  (1824),  5  Dowl.  &  Eyl.  6. 
As  to  the  lien  of  the  master  ujiou 
the  cargo  for  general  average,  which 
is  a  possessory  lien  at  common  law, 
see  infra,  §  77. 

{bb)  Ante,  pp.  277,  278. 


I 


29 


SECT.  LIX.J       THE  ADJUSTMENT  OF  GENERAL  AVERAGE. 

and  proper  place,  and,  as  a  consequence,  according  to 
the  law  of  that  place  "  (c). 

8  59.  These  decisions,  it  will  be  observed,  refer  Not  so,  when 
only  to  the  case  in  which  the  voyage  is  completed  by  the  broken  up. 
ship's  arriving  with  her  cargo  at  the  port  of  destination. 
If,  owing  to  sea  peril,  the  voyage  is  broken  up,  and  the 
ship  and  cargo  finally  part  company  at  some  intermediate 
point,  a  different  rule  is  applicable.  This  appears  from 
the  decision  in  Fletcher  v.  Alexander  [d). 

A  shii),  bound  from  Liverpool  for  Calcutta,  with  a  Fhtchn-  v. 

-J     ,  Alexander . 

cargo  consisting  entirely  of  salt,  was  stranded  on  a 
sandbank  near  Wexford.  To  lighten  lier,  a  very  large 
portion  of  the  salt  was  thrown  overboard  ;  she  was  then 
towed  off  the  bank,  and  brought  back  to  Liverpool  in  a 
leaky  state.  Of  the  salt  not  jettisoned,  the  greater  part 
was  either  washed  out  by  sea-water  or  so  damaged  as 
not  to  be  fit  for  reshipment.  The  small  portion  of  sound 
salt  which  remained  was  not  sufficient  even  to  ballast  her, 
and  was  not  worth  carrying  on  by  itself.  The  charterer 
refused  to  furnish  a  fresh  cargo.  Under  these  circum- 
stances the  voyage  was  abandoned.  When  the  ship  was 
repaired,  her  owner  took  in  a  fresh  cargo  of  salt  on  his 
own  account,  and  sent  it  to  Calcutta,  where  it  arrived, 
and  was  sold  at  a  profit. 

On  these  facts,  several  questions  were  raised  as  to 
the  proper  mode  of  adjusting  the  claim  for  jettison  ;  most 
of  which  may  be  reserved  for  a  future  chapter.  At 
present  we  are  only  concerned  witli  the  decision  so  far 
as  it  bears  on  the  proper  time  and  place  for  adjusting 
the  averaoe. 

On  behalf  of  the  owner  of  the  salt  it  was  contended 

(c)  Lloyd  V.  Gaibert  (lS6o),  L.  R.  1  Q.  B.  115,  at  p.  126. 
((/)  (1868),  L.  E.  3  C.  P.  37<3. 


294 


TIME,  PLACE,  ETC.,  WHICH  REGULATE       [CHAP.  VI. 


that  he  was  entitled  to  the  sum  which  the  jettisoned  salt 
would  have  produced  had  it  been  carried  in  the  ship  to 
Calcutta  :  and,  since  the  event  proved  that  in  that  case 
it  would  have  been  sold  at  a  profit,  as  the  second  cargo 
was,  he  was  entitled  to  such  profit.  As  a  consequence 
of  this  contention,  it  was  argued  that  Calcutta  was  the 
proper  place,  and  the  date  of  the  ship's  arrival  there  the 
proper  time,  for  adjusting  the  general  average. 

Bovill,  C.  J.,  in  giving  judgment,  said  that,  although 
in  general  the  port  of  destination  was  the  proper  place 
for  adjusting  a  general  average,  yet,  when  the  voyage 
was  broken  up,  and  the  adventure  brought  to  an  end  at 
some  other  place,  the  average  should  be  adjusted  there, 
and  bv  the  law  which  there  prevailed.  Montague 
Smith,  J.,  expressed  a  similar  opinion,  but  more  guardedly; 
limiting  it  to  the  case  of  a  breaking  up  of  the  adventure 
at  the  port  of  departure  {e). 


What  justifies 
breaking-  up 
voyage. 


Mavro  v. 
Ocean  Mar. 
Ins.  Co. 


§  GO.  Upon  the  question,  wliat  properly  constitutes 
a  breaking  up  of  the  voyage,  so  as  to  change  the  place 
of  adjustment  from  the  port  of  original  destination  to 
that  where  the  voyage  is  broken  up,  we  have  the  follow- 
ing decisions : — 

In  Mavro  v.  Tlie  Ocean  Mar.  Ins.  Co.(^/),  where  the 
ship  General  Chasse,  chartered  at  Constantinople  to  carr\-  a 
cargo  of  vv^heat  from  Varna  to  Marseilles,  had  sailed  with 
her  cargo,  but  on  the  voyage  had  met  bad  weather,  been 
obliged  to  carry  a  press  of  canvas,  and  sprung  a  leak, 
which  obliged  her,  after  throwing  overboard  some  of  the 
cargo  and  ship's  materials,  to  bear  up  for  Constantinople, 


(f)  Fletcher  v.  Alexander  (iSOy), 
L.  E.  3  C.  P.  ;37o.  "  The  authorities 
show  that  where  the  vessel  is  obliged 
to  return  to  the  port  of  departure, 


that  is  to  be  taken  as  the  jiort  of 
adjustment"  (at  p.  387). 

(/)  (1874),  L.  R.  9  C.  P.  595. 


SECT.  LX.J   THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  295 

the  cargo  as  well  as  the  ship  was  damaged.  Surveyors, 
appointed  by  the  Consular  Court,  recommended  that  the 
cargo  should  be  sold  by  public  auction  for  tlic  benefit  o£ 
all  concerned,  and  tliat  the  voyage  of  the  vessel  should 
end  at  Constantinople.  Both  tlie  owner  of  the  ship  and 
the  charterer  were  present  at  this  survey.  This  recom- 
mendation was  not  entirely  acted  upon :  a  fresh  survey 
was  called,  on  the  application  of  the  agent  for  the  under- 
writers of  the  cargo,  and  it  being  found  that  one-fifth 
part  only  of  the  cargo  was  damaged,  that  portion  only 
was  sold,  and  the  remainder  was  forwarded  in  another 
vessel  to  Marseilles.  The  necessity  for  the  transhipment, 
instead  of  repairing  The  General  Cha-sse,  is  not  very  evident 
on  the  report  :  but  it  appears  that  the  transhipment  was 
agreed  to  by  all  the  parties  interested  in  the  adventure, 
and  was  directed  by  the  order  of  the  Consular  Court.  On 
these  facts  the  Court  of  Common  Pleas  were  clearly  of 
ox)inion  that  the  court  at  Constantinople  must  be  taken 
"  to  have  had  iurisdiction  to  make  the  orders  which  it 
did,  and  which  were  acquiesced  in  at  the  time.  The 
court  were  also  of  opinion,  upon  the  facts  found  in  the 
case,  that  it  must  be  taken  that  the  voyage  was  neces- 
sarily broken  up  at  Constantinople  "  [g).  On  this  case  it 
is  to  be  observed,  however,  as  pointed  out  by  Lindley,  J., 
in  Hilly.  Wilson,  that:  "  The  real  question  in  this  case 
was  the  true  construction  of  an  English  policy  of  insur- 
ance containing  the  words  '  general  average  as  per 
foreign  statement ; '  and  the  case  does  not  throw  much 
light  on  any  other  question  "  (//). 

In  the  case  of  Hill  v.  Wihon{i),  TItc  Virago  sailed  miiy.wuson. 
from   Riga  with   a   general   cargo,  bound  for    Hull,  and 
was  stranded  and   injured,  but  was  got  off  and  towed 

(,(/)  (18(38),  L.  R.  9  C.  P.  at  p.  G04.  (/)  (1879).  4  C.  1'.  D.  329. 

[h)  (1879),  4C.  P.  D.  at  p.  833. 


296 


TIME,   PLACE,  ETC.,   WHICH  REGULATE       [CHAP.   VL 

into  Copenhagen,  where  the  cargo  was  discharged  and 
the  ship  was  repaired  at  a  large  expense.  The  whole  of 
the  goods  belonging  to  the  plaintiffs,  being  damaged, 
were  sold,  and  admittedly  properly  sold,  at  Coj^enhagen  : 
the  ship,  with  a  j^ortion  of  her  original  cargo  belonging 
to  other  shippers,  proceeded  on  her  A'-oyage  and  arrived 
at  Hull.  The  shipowner  claimed  that,  as  between  him- 
self and  the  plaintiff,  the  voyage  ended  at  Copenhagen, 
and  the  general  average  as  between  them  must  be 
adjusted  at,  and  by  the  law  of  Copenhagen,  which  was 
more  favourable  to  him  than  the  law  of  England,  as 
giving  him  a^ro  rata  freight  and  in  other  respects.  The 
portion  of  cargo  sold  at  Copenhagen  amounted  to  about 
seven-eighths  of  the  whole. 

Lindley,  J.,  before  whom  the  case  was  tried,  said  : — 

"I  am  of  opinion  that  it  is  incumbent  upon  the  defendants  to 
show  that  the  Danish  adjustment  is  binding  upon  the  plaintiffs;  it 
is  incumbent  on  the  defendants  to  show  that  the  voyage  was 
terminated  at  Copenhagen  by  the  occurrence  of  circumstances  which 
necessitated  or  justified  such  termination,  and,  as  a  consequence, 
necessitated  or  justified  a  general  average  adjustment  at  that  port. 

"Very  little  information  is  to  be  obtained  upon  the  question 
what  circumstances  terminate  a  voyage  at  an  intermediate  port, 
when  the  ship  with  part  of  her  goods  on  board  arrives  at  her  original 
port  of  discharge.  The  only  cases  reported  in  our  own  books  on 
this  point  are  Fletcher  v.  Alexander  (Jc),  and  Mavro  v.  Ocean 
Marine"  (I).  His  lordship,  after  setting  forth  those  cases,  con- 
tinued : 

"In  this  state  of  the  authorities,  it  is  necessary  to  consider  the 
matter  on  principle.  The  duty  of  the  shipowner  is  to  complete  the 
voyage  if  he  can.  If  owing  to  perils  of  the  seas  he  is  compelled  to 
put  into  an  intermediate  port  for  repair,  his  duty  is  to  refit,  and 
carry  on  such  part  of  the  original  cargo  as  is  fit  to  be  carried  on. 
If  this  is  done,  a  policy  on  the  ship  for  the  original  voyage  %vill 
cover  a  loss  sustained  after  she  has  been  repaired  and  is  sailing 

(/.)  (1868),  L.  E.  ;J  C.  P.  37J. 

(Z)  (1874),  L.  E.  9  C.  P.  595  ;   10  C.  P.  -114. 


SECT.  LX.J       THE  ADJUSTMENT  OF  GENERAL  AVERAGE. 

from  the  port  of  repair  to  her  original  port  of  destination;  and  a 
policy  on  her  original  cargo  will  still  cover  so  much  of  such  cargo 
as  is  being  carried  in  her  between  the  same  ports.  In  a  case  of 
this  description,  the  original  voyage  is  not  regarded  as  broken  up 
into  two,  viz.,  first  into  one  voyage  from  the  port  of  sailing  to  the 
port  of  refuge,  and  secondly  into  another  voyage  from  such  port 
to  the  port  of  destination. 

"Again,  if  the  shipowner,  being  unable  to  repair  his  ship, 
tranships  the  cargo  and  sends  it  home  in  some  other  ship,  which 
he  may  do,  still,  as  between  him  and  the  original  consignees  of  the 
cargo,  the  original  voyage  is  treated  as  continuing,  in  the  absence 
of  some  agreement  to  the  contrary.  This  appears  from  Shipton  v. 
Thornton  (m),  where  the  freight  payable  in  such  cases  is  discussed. 
Further,  in  a  case  of  this  description,  a  policy  on  the  cargo  for  the 
original  voyage  will  cover  such  cargo  when  transhipped  in  order 
to  complete  such  voyage  (w) . 

"  These  considerations  appear  to  me  to  show  that,  in  order  to 
uphold  the  Danish  adjustment  in  this  case  as  against  the  plaintiffs 
who  have  never  assented  to  it,  the  defendants  must  prove  two  things. 
First,  that  the  original  voyage  was  in  fact  terminated  at  Copen- 
hagen, and  secondly,  that  it  was  so  terminated  either  by  agreement  or 
necessity,  i.e.,  the  occurrence  of  circumstances  beyond  the  control 
of  the  defendants,  and  such  as  rendered  the  completion  of  the  voyage 
on  the  terms  originally  agreed  upon  physically  impossible,  or  so 
clearly  unreasonable  as  to  be  impossible  in  a  business  point  of 
view. 

"Assuming  the  original  voyage  to  have  in  fact  terminated  at 
Copenhagen,  neither  the  necessity  for  its  termination  there  nor  its 
termination  by  any  agreement  binding  on  the  plaintiffs  is  proved. 
The  desirability  of  having  the  average  adjusted  at  Copenhagen,  in 
order  to  obtain  an  allowance  of  distance  freight,  and  the  desirability 
of  bringing  about  a  separation  of  siiip  and  cargo  in  order  to  obtain 
an  adjustment  at  Copenhagen,  were  clearly  seen  by  Hanson,  and 
were  pointed  out  by  him  to  the  defendants;  and  the  correspondence 
satisfies  me  that  the  adjustment  at  Copenhagen  was  not  the  conse- 
quence of  an  inevitable  breaking  up  of  the  voyage  there,  but  was 
the  cause  of  the  voyage  being  broken  up  there,  so  far  as  it  can 
be  said  to  have  been  broken  up  Avith  respect  to  the  ship  and  the 
undamaged  goods  "  (o). 

(m)  (183S),  9  Ad.  &  E.  .314.  (o)  /////  v.  Wi/son  (1S79),  4  C.  P.  D. 

(n)  1  Am.  Ins.  2nd  edit.  491.  at  p.  ;332. 


297 


298  TIME,  PLACE,  ETC.,  WHICH  REGULATE       [CHAP.  VI. 

His  lorclsliip  decided,  therefore,  tliat  the  plaintiffs 
were  not  bound  by  the  Copenha<^eri  adjustment. 
Various ciises  Qne  case  touched  upon  in  this  iudo-ment, — that  of 

of  tranship-  .  ^  J        o  7 

ment.  cai'g'o   transhipped,   and   forwarded   in   another  bottom, 

when  the  original  ship  is  not  repaired,  ma}'  arise  under 
three  different  forms ;  and  this  raises  complications,  not 
dealt  with  in  this  judgment,  and  indeed  not  as  yet,  I 
believe,  dealt  with  in  our  courts. 

First,  the  cargo  may  be  forwarded  to  its  destination 
under  the  original  contract,  in  order  that  the  shipowner 
may  earn  his  freight  under  tlie  bill  of  lading  or  charter- 
party,  he  himself  bearing  the  cost  of  forwarding. 
Secondly,  the  cargo  may  be  forwarded  by  the  master, 
under  his  power  of  agency  for  the  owner  of  the  cargo,  at 
a  rate  of  freight  exceeding  that  by  the  original  con- 
tract (/>).  In  such  a  case,  the  cargo  is  forwarded  at  the 
expense  of  the  merchant ;  but  still,  if  the  new  bill  of 
lading  is  made  out  in  the  name  of  the  master  and  con- 
signed to  his  agent,  the  cargo  may  continue  subject  to 
the  shipowner's  lien  for  general  average.  Thirdly,  the 
carffo  mav  be  forwarded  to  its  destination  bv  or  on 
behalf  of  the  merchant,  and  without  retention  of  the 
shijiowner's  right  of  lien. 

Case  1.—  In  the  first  of  these  cases,  it  can  hardly  be  said  that 

Cargo  for- 
warded under  the  voyage  is  broken  up.      There  is  simply  the  subsiitu- 

original  ,  i  i   •  ^  i 

contract.  tioii  by  the  shipowner  ot  one  bottom  for  another :  a 
substitution  which,  under  such  circumstances,  he  has  a 
legal  right  to  make :  tlie  contract,  and  tlierefore  the 
adventure  which  is  constituted  by  it,  still  subsists  :  all 
rights  under  it,  and  amongst  the  rest  the  right  of  lien 
for,  and  recovery  of,  general  average  on  delivery  of 
the  cargo  to  the  consignee,  still  remain  in  force.  In 
this  case,  therefore,  it  is  conceived  that  the  proper  time 

(/j)  See  KTiU  ,  p.  275. 


SECT.  LX.]       THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  '^^^ 

and  place  for  adjustment  is  the  delivery  of  the  cargo  at 
the  port  of  destination. 

The  second  case  is  not  so  clear.     We  must  take  it  Case  2  — 

Oargo  lor- 

that  the  shipowner  is  not  bound  to  tranship.     He  has  warded  under 

X  ^  shipowner  s 

the  right,  then,  apparently,  to  put  in  force  his  lien  on  Uen. 
the  cargo  for  general  average,  at  once,  at  the  place  where 
the  ship  is  wrecked.  It  is  at  this  time  and  place,  there- 
fore, that  the  cargo  becomes  liable  for  general  average. 
The  amount  of  its  liability  nmst  consequently  be 
determined  by  tlie  state  of  facts  which  then  exists. 
Suppose  the  cargo  to  consist  of  two  or  more  portions, 
belonging  to  different  owners,  the  liability  of  one 
portion  cannot,  after  it  has  once  thus  attached  to  it,  be 
increased  by  reason  of  the  subsequent  loss  of  another 
portion.  Hence,  if  these  portions  be  transhipped  to 
their  destination  in  two  vessels,  one  of  which  is  lost 
before  arrival,  that  circumstance  ought  not  to  augment 
the  contribution  of  the  portion  which  arrives  in  the 
other.  If,  for  example,  A.'s  goods  and  B.'s  goods  are  of 
equal  value  at  the  place  of  wreck,  so  that,  if  the  average 
were  adjusted  on  the  spot,  A.  and  B.  would  each  pay 
one-half  of  the  cargo's  share  of  the  general  average 
expenditure,  then,  since  this  liability  attached  to  each 
owner  at  the  time  of  the  wreck,  A.  cannot  be  made  to  pay 
the  whole  because  B.'s  goods  are  lost  on  tjie  way  home. 

If  this  is  sound,  it  follows  that  in  this  second  case 
the  general  average  must  be  adjusted  upon  the  state  of 
facts  as  existing  at  the  time  of  wreck  or  condemnation, 
and  upon  the  values  at  that  time  and  place.  It  does  not 
follow,  however,  that  the  law  of  that  place  is  that  which 
ought  to  govern  the  adjustment.  The  shipowner  has 
elected,  as  he  has  a  perfect  right  to  do,  to  follow  the 
goods  with  his  lien  to  the  place  of  destination,  and  to 
make  his  claim  there.      The  law  of  the  place  where  he 


300 


TIME,  PLACE,  ETC.,  WHICH  REGULATE       |  CHAP.  VI. 


Case  3. — 
Cargo  for- 
warded by 
cararo-owEor. 


makes  his   claim  is  that  which,  it  would  seem,  should 
determine  the  amount  [q). 

In  the  third  case  it  is  otherwise.  The  forwarding 
of  the  cargo  by  the  merchant  or  his  agent  is  here  in  no 
sense  done  for  the  benefit  of  the  shipowner :  it  is  a 
matter  with  which  he  has  no  concern.  So  far  as  regards 
him,  the  voyage  is  absolutely  broken  up  at  the  place  of 
wreck;  and,  this  being  so,  Fletcher  v.  Alexander  [r) 
directh^  establishes  that  the  place  of  wreck,  at  any  rate 
if  it  is  the  port  of  loading,  is  the  proper  place  of  adjust- 
ment. •  An  adjustment  correctly  made  at  that  place, 
according  to  the  law  there  in  force,  and  based  on  the 
state  of  facts  and  values  at  the  time  of  wreck,  might  be 
enforced  by  the  shipowner  before  parting  with  the  cargo. 
Such  an  adjustment,  therefore,  furnishes  the  correct  basis 
for  a  settlement. 


Effect  of 
subsequent 
accident  on 
contribution. 


§  61.  This  seems  the  most  convenient  place  for 
discussing  a  question,  as  to  which  opinions  are  at  present 
divided  amongst  adjusters  in  this  country,  namely, 
whether  the  state  of  facts  upon  which  an  adjustment  of 
general  average  is  to  be  based  should  be,  the  facts  as 
existing  at  the  time  when  the  sacrifice  or  expenditure 
took  place,  or  at  the  termination  of  the  adventure, — 
meaning  b}'  termination,  either  the  ship's  arrival  at  her 
destination,  or  the  breaking  up  of  the  voyage  in  the 
manner  already  described. 

This  question  becomes  one  of  much  practical  import- 
ance   whenever,    after   a    sacrifice    has    been    made    or 


{q)  The  editors  doubt  the  correct-  the  ^hip  was  wrecked  or  condemned, 

ness  of  this  statement.     It  seems  to  the  adjustment  ought   to   be  made 

them  that  as  the  common  adventure  according  to  the  law  of  that  place. 

came  to  an  end  at  the  place  where  (r)  L.  E.  3  C.  P.  375 ;  ante,  p.  293. 


SECT.  LXl]   the  adjustment  OF  GENERAL  AVERAGE. 

expenditure  incurred,  for  the  good  of  all,  a  subsequent 
independent  accident,  by  destroying  or  damaging  a 
portio]!  of  the  property  at  risk,  alters  the  relative  values 
of  the  remainder.  This  second  accident  may  affect,  not 
only  the  contributing  values,  but  also  the  amount  to  be 
allowed  as  compensation  for  the  sacrifice. 

Arnould  lays  down  the  rule  as  follow^s : — When  the 
general  average  loss  consists  of  a  sacrifice  of  property, 
not  replaced  during  the  voyage,  the  adjustment  must  be 
reorulated  by  the  state  of  facts  existing  at  the  termina- 
tion  of  the  adventure.  When  it  consists  of  expenditures 
actually  incurred,  tiie  adjustment  must  be  regulated  by 
the  state  of  facts  at  the  time  when  the  outlay  was 
made  {s). 

This,  however,  has  never  been  the  prevalent  practice 
in  this  country.  The  rule  ordinarily  adopted  by  adj  usters 
has  been,  in  the  case  alike  of  expenditures  and  sacrifices, 
to  take  as  their  basis  the  state  of  facts  existing  at  the 
termination  of  the  common  adventure.  It  cannot  be  said 
that  this  practice  has  been  followed  universally.  Some 
adjusters  adopt  a  different  rule.  In  the  case  of  salvage, 
adjudicated  upon  by  a  court  of  Admiralty,  and  allotted 
on  valuations  of  the  ship  and  cargo  made  on  the  spot, 
there  has  been  a  tendency  to  accept  those  values  as 
conclusive,  even  in  the  event  of  a  material  change  in  the 
proportions  resulting  from  subsequent  accident.  There 
is  not  an  established  uniform  custom  on  this  point.  Still, 
the  oi)inion  which  on  the  whole  prevails  in  practice  is, 
that  ultimate  results  should  be  the  basis  of  adjustment. 

The  question  is,  which  of  these  two  views  is  the 
correct  one. 


(y)  Arn.    2nd   edit.    p.    .s;59  ;    Mr.       (Ain.  (itli  edit.  p.  892.     Sec  also  Arn. 
Maclachlan   has   some   forcible    and       8tli  edit.  §§  97G,  977.) 
just    observations    on    tbe    subject. 


301 


•302  TIME,  PLACE,  ETC.,  WHICH  REGULATE       [cHAP.  VI. 

That  which  is  at  present  settled  by  decisions  in  the 
courts  amounts  only  to  this  :  that,  in  the  case  of  Jettison 
of  cargo,  the  state  of  facts  at  the  termination  of  the 
adventure,  whether  by  arrival  or  by  the  voyage  being- 
broken  up,  must  regulate  the  adjustment.  This  is 
determined  by  Fletcher  v.  Alexander  [t). 

"If,"  said  Bovill,  C.  J.,  'after  the  jettisou  or  the  matter  which 
is  the  subject  of  general  average  has  arisen,  the  remainder  of  the 
goods  are  totally  lost,  and  so  no  benefit  accrues  to  the  owners  of 
the  other  goods  from  the  jettisou,  no  contribution  can  be  claimed. 
The  whole  law  on  the  subject  is  founded  on  the  principle  that  the 
loss  to  the  individual  whose  goods  are  sacrificed  for  the  benefit  of 
the  rest  is  to  be  compensated  according  to  the  loss  sustained  on  the 
one  hand  and  the  benefit  derived  on  the  other."     (p.  382.) 

'"The  average  adjuster,"  said  Montague  Smith,  J.,  ''must  take 
into  consideration  what  would  have  been  the  state  of  the  goods  if 
they  had  remained  on  board  and  shared  the  fate  of  the  rest  of  the 
adventure.  In  Arnould,  3rd  edit.  p.  803,  it  is  said: — '  The  practical 
rule  adopted  is  this:  The  property  sacrificed  for  the  general  benefit 
is  reg'arded  as  though  it  had  never  been  lost,  but  actually  was  a 
portion  of  the  Avhole  mass  of  property  on  which  the  contribution 
is  assessed  at  the  time  the  adjustment  is  made.'  That  seems  to  me 
to  be  the  correct  view."     (p.  387.) 

On  this  point  all  the  authorities,  and  the  practice, 
are  agreed.  The  question  as  to  which  there  is  room  for 
difference  of  opinion  is,  whether  the  rule  thus  laid 
down  for  jettison  is  to  be  applied  to  the  case  of  expen- 
ditures. 


Arguments  in  In    favour    of    taking    the    state    of    facts    at    the 

taking  uiti-     termination  of  the  adventure,   there  are  the  following 

mate  results.  . 

arguments  : — 

1.  The  value   of  the  property  when  it  reaches  the 
hands  of  its  owners  may  be  ascertained  with  j^recision. 

(0  (1868),  L.  E.  3  C.  P.  375. 


SECT.  LXI.J       THE  ADJUSTMENT  OF  GENERAL  AVERAGE. 

Any  other  values  can  in  general  only  be  conjectural;  and 
the  adoption  of  conjectural  values  would  render  the 
adjustment  too  uncertain  to  be  enforced. 

2.  There  ought  to  be  only  one  adjustment  of  the 
entire  general  average.  Endless  confusion  would  result 
from  a  multiplicity  of  adjustments :  for  example,  from 
allowing  the  merchant  whose  goods  have  been  jettisoned 
to  make  his  claim  for  contribution  by  one  distinct  adjust- 
ment, and  the  shipowner  wdiose  mast  has  been  cut  away 
on  the  same  voyage  to  make  his  claim  by  another.  If 
there  is  to  be  one  adjustment,  that  adjustment  should  be 
made  on  the  same  basis  of  facts  throughout.  When  there 
is  a  jettison  and  a  cash  outlay  on  the  same  voyage, 
ultimate  results  must  be  the  basis  of  the  jettison  :  so  that, 
in  such  a  case,  convenience  requires  that  there  should  be 
the  same  basis  for  the  outlay. 

3.  The  ground  of  contribution  to  general  average  is, 
benefit  received.  '^  The  whole  law  depends,"  according 
to  the  judgment  just  quoted,  "  on  the  loss  of  the  one  and 
the  benefit  to  the  other."  This  principle  can  only  bo 
completely  carried  out  by  adojoting  ultimate  results  as  the 
basis  of  settlement. 

4.  Has  the  master  authority  to  incur,  at  the  (;harge 
of  the  cargo,  a  certain  outlay  for  an  uncertain  benefit  ? 
Lord  Stowell,  in  his  judgment  in  the  Gratitudine' s  case, 
puts  the  cargo's  liability  for  salvage  on  tlie  ground  that 
the  incurring  of  it  may  be  for  the  benefit,  and  cannot 
possibly  be  to  the  detriment,  of  the  cargo.  "  In  the  case 
of  ransom,"  he  says,  "  what  was  intended  for  the  benefit 
of  the  cargo  maij  eventually  consume  the  whole  :  the  jDro- 
prietor  will  not  be  benefited  in  such  a  case,  but  he  cannot 
be  damnified :  he  will  have  had  the  chance  of  advantage 
Avithout  the  danger  or  possibility  of  loss ;  for  he  cannot 
suffer  beyond  the  value  of  the  cargo,  which,  without  such 


808 


304  TIME,  PLACE,  ETC.,  WHICH  EEGULATE      [CHA.P.   VI. 

ransom,  would  have  gone  to  the  enemy  in  toto  "  {u).  But 
an  adjustment  which  is  not  based  on  ultimate  results  may 
have  the  effect  of  making  an  owner  of  cargo  pay  general 
average  in  addition  to  losing  his  goods ;  that  is,  may  put 
him  in  a  worse  position  than  if  the  general  average  act 
had  never  taken  place. 

It  must  not  be  objected  that  the  master  may  be 
under  the  necessity,  either  of  thus  incurring  a  certain 
outlay  for  an  uncertain  benefit,  or  of  leaving  the  whole 
property  to  perish.  He  is  never,  practically,  reduced  to 
this  alternative ;  for  he  may  raise  money  for  such  pur- 
poses by  a  loan  on  bottomr}^,  or  a  sale  of  a  portion  of  the 
carffo ;  having  done  which,  if  the  ship  and  cargo  should 
be  afterwards  lost  on  the  v(.>yage,  the  outlay  becomes 
merged  in  that  loss. 

If,  then,  Lord  StowelPs  principle  is  to  be  carried 
out,  it  must  be  held  that  the  master  has  no  authority  to 
bind  the  cargo  for  any  outlay,  the  re^^ayment  of  which  is 
not  made  conditional  upon  the  eventual  safety  or  arrival 
of  the  cargo  at  its  destination. 

5.  Even  if  the  master's  authority  be  not  thus  limited, 
yet,  since  the  ground  for  contribution  is  benefit  derived, 
it  is  reasonable  that  the  expense  should  fall  on  those  who 
have  derived  benefit,  rather  than  on  those  who  have  not. 
If,  after  the  outlay  incurred,  the  ship  and  cargo  utterly 
perish,  so  that  no  benefit  is  in  result  derived  by  any  one, 
it  may  be  right  that,  all  being  thus  on  an  equality,  all 
alike  should  contribute,  since  in  that  case  it  is  necessary 
to  fall  back  on  the  intention  to  benefit.  But  an  intention 
to  benefit  is  not  so  strong  an  argument  for  contribution 
as  a  benefit  actually  conferred.  If  some  have  in  fact 
reaped  an  advantage,  while  others  have  merely  had  an 
advantage  intended  to  them,   but  not   conferred,   these 

(«)  (1801),  3  Chr.  Eob.  260. 


SECT.  LXI.  I   THE  ADJUSTMENT  OF  GENEKAL  AVERAGE.  305 

two  parties  ought  not  to  be  placed  on  an  equal  footing-  ii\ 
respect  to  contribution. 

6.  Lastly,  the  shipowner's  right  to  lien  for  general 
average  can  only  be  made  perfectly  available  for  his 
protection  bv  adopting  the  basis  of  ultimate  results.  On 
that  basis,  the  whole  general  average  is  payable  Ijy  tlie 
property  which  arrives  ;  on  that  property  alone  can  th(n-e 
be  a  lien  :  hence  the  lien  covers  the  entire  claim  ;  which 
it  would  not  do,  were  a  portion  of  the  general  average 
chargeable  against  the  property  which  has  been  lost  on 
the  way. 

Such  are  the  principal  arguments  in  support  of  the  ;^^fJ^oJjgj. 
prevalent  practice.     Let  us  now  hear  the  other  side.  ''^^^■ 

The  six  reasons  above  set  forth  are  partly  reasons  of 
convenience,  partly  founded  on  principle.  Let  us  begin 
with  the  latter:  and,  after  we  have  determined  which 
method  of  adjustment  is  right  in  principle,  then  consider 
whether  the  practical  difficulties  of  such  a  method  are 
insuperable.  There  are,  no  doubt,  cases  in  which  a 
perfect  principle  ought  not  to  be  adopted,  on  account  of 
the  inconveniences  which  would  ensue ;  this,  however, 
must  be  a  question  of  degree  ;  we  are  not  to  prefer  a 
convenient  wrong  to  a  right  course  which  is,  less  con- 
venient indeed,  yet  not  impracticable. 

The  question  of  principle,  reduced  to  its  simplest 
form,  is  this:  does  an  expenditure,  in  the  nature  of 
general  average,  incurred  in  the  middle  of  a  voyage, 
constitute  a  debt  which,  at  the  moment  it  is  incurred, 
is  due  rateably  from  each  contributor  ;  or  is,  not  merelv 
the  payment,  but  the  actual  indebtedness,  postponed  to 
the  termination  of  the  adventure  ?  In  the  former  case, 
if  the  indebtedness  exists,  the  proportion  due  from  each 
contributor  must  really  be   determined   at  the   time, — 

L.  X 


306  TIME,  PLACE,  ETC.,   WHICH  REGULATE       [CHAP.  VI. 

must  be  determined,  that  is,  by  the  state  of  facts  which 
then  exists  (.r). 

Now,  with  regard  to  one  great  class  of  such  expen- 
ditures, namely,  such  as  constitute  actual  salvage,  it  is 
undeniable  that  the  indebtedness  of  each  separate  owner 
of  ship  and  cargo  exists  at  the  moment  when  the  salvage 
service  is  completed.  A  salvor  who  rescues  the  ship  and 
cargo  from  danger,  and  brings  them  to  a  place  of  safety, 
is  not  bound  to  wait  for  his  repayment  until  the  voyage 
is  completed.  He  has  a  lien  on  the  ship  for  the  salvage 
on  the  ship,  and  a  lien  on  the  cargo  for  the  salvage  on 
the  cargo.  He  has  the  right  to  proceed  against  each 
separately.  There  is  nothing  to  prevent  the  owner  of 
the  ship,  or  the  owner  of  any  portion  of  the  cargo,  from 
arranging  with  the  salvor  separately  for  his  own  share 
of  the  salvage,  and  leaving  him  to  enforce  his  separate 
claim  against  the  remainder  of  the  property.  This  being 
so,  it  is  obvious  that  the  indebtedness  of  each  portion 
exists  determinately  at  that  point  of  time.  Can  it  make 
any  difference  if  we  suppose  that,  in  place  of  the  salvor's 

(x)   "When  au  expenditure  is  in-  so,  tlie   object  to  be  had  in  view  in 

curred  for  the  general  benefit,   the  every  adjustment  of  general  average 

money  by  ■which  it  is  discharged  is  would  not  under  all  circumstances  be 

either  supplied  by  the  shipowner  out  attained ;    for,  in  those  cases  where 

of  his  own  funds,  or  raised  by  a  loan  the  ship  and  goods,  after  being  re- 

from  some  third   party.     In   either  lieved   by  the   expenditure,    wholly 

case  it  is  obvious  that  he  has  a  per-  perish  before  arriving  at  the  port  of 

sonal  and  absolute  claim  against  all  destination,    the   partj"   making   the 

the  parties  interested  in  the  adven-  advance   would,    if    no   contribution 

ture,  in  respect  of  the  monej'^  thus  were  to  be  made,  be  worse  off  than 

laid  out  for  their  benefit,  and  that  the  parties  for  whose  benefit  it  was 

from  the   moment  the  advance   has  incurred  ;  as  he  would  not  only  have 

been  made.     It  is  equally   obvious,  lost,  like  the  rest,  all  his  share  in  the 

on  the  true  principles  of  adjustment,  adventure,   but  moreover  would  re- 

that  they  are   bound  in   equity  to  main  burdened  with  a  debt  contracted 

liquidate  this  claim  in  full,  whether  on  their  account,  or  be  the  loser  of  a 

any  part  of  the  proi)erty,  for  whose  sum    of    money   laid    out   for    their 

benefit  the  outlay  was  made,  be  ulti-  safety."     (Arn.  2nd  edit.  p.  938.     See 

mately  saved  or  not.     Were  this  not  Arn.  8th  edit.  §§  976,  977.) 


SECT.  LXI.]       THE  ADJUSTMENT  OF  GENERAL   AVEKAGE.  30 

dealing  separately  with  each  portion  of  the  property,  the 
master,  acting-  under  the  powers  he  has  when  at  a  distance 
from  the  owners  of  the  ship  and  cargo,  litigates  or 
compromises  the  salvage  on  behalf  of  all,  paying  a  fixed 
sum  for  all  ?  This  circumstance  surely  cannot  have  the 
effect  of  changing  the  period  of  the  indebtedness  of  each. 
Salvage,  then,  is  a  debt  absolutely  due  from  each  owner 
of  ])roperty  salved  at  the  moment  when  it  is  incurred. 

Salvage  is  the  type  or  model  of  general  average 
expenditure,  as  jettison  is  that  of  general  average 
sacrifice  (,y).  The  basis  of  the  claim  for  contribution  in 
respect  of  outlay,  is,  that  the  master  has  incurred  the 
expenditure,  or  performed  the  act  which  occasioned  it, 
not  in  his  capacity  of  servant  to  the  shipowner,  but 
under  his  more  enlarged  powers  of  agency  on  behalf  of 
all.  It  is  now  questioned  whether  these  powers  include 
the  right,  in  case  of  necessity,  of  making  a  certain  outlay 
in  order  to  procure  an  uncertain,  but  much  greater, 
advantage. 

Lord  Stowell's  dictum,  above  cited,  taken  bv  itself, 
would  certainly  lead  us  to  the  conclusion  that  he  has  no 
such  power.  But  it  must  be  remembered  that  this 
celebrated  judgment  is  now  more  than  a  century  old;  and 
that  it  was  given  at  a  time  when  the  law  of  general 
average  had  scarcely  found  its  way  into  the  English 
courts,  and  was  ver}^  imperfectly  understood.  It  is  a 
mere  dictum,  very  remotely,  if  at  all,  connected  with  the 
question  at  issue  before  the  court.  Other  similar  dicta 
in  the  same  judgment  have  been  much  discredited.  In 
Duncan  v,   Benson,  for  example,  where  portions  of  this 

(?/)  Salvage  proper,  as  distinguished  Act,  1906,  s.  65;  ante,  p.  175,  n.  (h); 
from  salvage  under  contract,  is  not,  but  the  argument  in  the  text  does 
strictly  speaking,  general  average.  not  seem  to  the  editors  to  be  sensibly 
See  Carver,  §  ^96  ;  Marino  Insurance      affected  by  this  distinction. 

x2 


308  TIME,  PLACE,  ETC.,  WHICH  REGULATE       [CHAP.  VI. 

judgment  were  cited,  Pollock,  C.B,,  observed  that  the 
judgment  must  be  taken  secundum  suhjectam  materiem^ 
and  tbat  the  dicta  cited  referred  to  a  question  entirely 
beside  the  case ;  and  be  accordingh'  declined  to  apply 
tbe  dicta  in  question  (.?). 

If,  tben,  we  examine  the  question  apart  from  autho- 
rity, we  shall  see  that  the  master's  right  to  incur  outlay 
is  not  thus  limited.  For,  in  the  case  of  an  absolute 
expenditure  for  general  average,  followed  by  an  utter 
loss  of  the  ship  and  cargo,  it  is  not  questioned  that  such 
outlay  is  recoverable  from  the  owners  of  the  ship  and 
cargo  rateably.  The  lien  is  of  course  gone  ;  hence  there 
may  be  a  difficulty  of  tracing  the  actual  owners  of  the 
property,  and  so  a  practical  difficulty  of  recovering  pay- 
ment ;  but  it  is  not  denied  that,  when  this  difficulty  is 
overcome,  there  is  a  right  of  recovery.  Again,  in  the 
case  of  salvage,  it  has  never  been  doubted  that  the 
master  has  the  right,  at  a  distance  from  the  owners,  and 
where  communication  is  impracticable,  to  settle  with  the 
salvors  by  an  absolute  payment :  and,  having  done  so, 
not  merely  has  the  right,  but  is  bound,  not  to  resort 
either  to  bottomry  or  a  sale  of  goods  to  raise  funds,  if  he 
can  obtain  the  requisite  advances  on  the  personal  credit 
of  his  owners.  It  seems,  then,  to  be  clear  beyond 
question  that  the  master,  acting  under  his  power  of 
agency  on  behalf  of  all,  has  authority  to  incur  an 
absolute  outlay  of  money,  repayable  at  all  events,  for  the 
sake  of  procuring  a  benefit  which  may  in  result,  owing 
to  a  subsequent  accident,  prove  to  have  been  useless. 
This  power  is  of  course  limited  by  his  duty  to  act 
judiciously. 

The  contrary  doctrine  would  indeed  be  in  the 
highest    degree    mischievous.      Were    the    captain    not 

(z)  Duncan  y.  Benson  (1847),  1  Exch.  537. 


SECT.  LXI.J       THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  309 

invested  with  this  power,  it  might  frequently  happen 
that,  for  want  of  it,  the  whole  property  might  be 
endangered,  or  the  object  of  the  adventure  frustrated. 
The  captain  might  be  in  the  position  in  which  a 
moderate  and  reasonable  outlay,  such  as  he  would  not 
hesitate  to  make  were  the  whole  property  his  own, 
would  enable  him  to  proceed  on  the  voyage.  He  could 
not  legally  raise  money  by  bottomry  or  a  sale  of  cargo, 
because  the  agent  on  the  spot  is  ready  to  advance  the 
money  for  a  draft  on  his  owner.  It  would  be  ruinous  to 
wait  for  remittances  from  home  :  indeed,  he  is  afraid  to 
wait,  lest  the  unnecessary  delay  should  bring  upon  his 
owners  the  penalties  of  deviation.  Thus  there  would  be 
a  complete  dead-lock,  merely  for  the  want  of  his  possess- 
ing a  simple,  yet  essential,  authority. 

The  question  of  principle,  then,  seems  to  be  clear. 
For  actual  outlay,  incurred  for  the  sake  of  all,  each  owner 
of  property  is  actually  a  debtor,  in  respect  of  his  propor- 
tion, so  soon  as  the  outlay  has  been  incurred.  It  is  not 
the  indebtedness,  but  simply  the  repayment,  which  is 
postponed  till  the  termination  of  the  voyage.  On  prin- 
ciple, then,  the  proporticms  should  be  determined  by  the 
state  of  facts  which  then  exists. 

The  only  argument  of  principle,  on  the  side  of  taking- 
ultimate  results,  which  has  not  yet  been  dealt  with,  is  that 
marked  as  No.  o  :  namely,  that  a  mere  intention  to  benefit 
should  not  rank  as  an  equal  ground  of  contribution  with 
a  benefit  actually  conferred.  This,  however,  seems  to 
disappear,  when  we  distinctly  apprehend  that  the  period 
of  indebtedness,  and  therefore  the  period  at  which  we 
should  enquire  into  the  grounds  for  contribution,  is,  not 
the  termination  of  the  adventure,  but  the  time  when  the 
outlay  was  incurred.  At  that  period  all  the  contributors 
were  in  this  respect  on   an   equal  footing.     The  whole 


310  TIME,  PLACE,  ETC.,  WHICH  REGULATE       [CHAP.  VI. 

was  at  risk :  the  arrival  of  no  part  was  certain  :  there 
was  at  that  time  nothing  but  an  intention  to  benefit  all ; 
yet  this  by  itself,  as  we  have  seen,  is  a  sufficient  ground 
for  making  all  contribute. 

The  true  principle  being,  then,  that  the  contribution 
for  actual  outlav  should  be  based  on  the  state  of  facts 
when  the  outlay  was  incurred,  we  are  in  the  next  place 
to  consider  whether  it  is  practicable  to  carry  this  prin- 
ciple out. 

The  first  objection  raised  is  that,  whereas  the  value 
of  the  property  when  it  reaches  the  hands  of  its  owners 
at  the  port  of  destination  can  be  ascertained  with  pre- 
cision, the  value  at  any  intermediate  point  must  be  more 
or  less  conjectural.  To  this  it  must  be  answered  :  The 
value,  at  an  intermediate  port,  of  j^roperty  which  is  not 
intended  for  sale  there,  and  indeed  cannot  be  sold,  but 
is  to  be  carried  on  to  its  destination,  is  in  fact  its  value 
at  its  destination,  deducting  the  cost  of  conveying  it 
thither,  and  also  deducting  the  value  of  the  chance  of 
its  being  lost  on  the  way.  This  principle,  which  is 
evidently  sonnd,  is  adopted  in  the  Court  of  Admiralty  as 
the  basis  of  valuation  for  salvage.  Thus,  where  a  cargo 
bound  for  London  was  saved  and  carried  into  lisbon, 
and  the  amount  of  salvage  was  to  be  determined  by  its 
value  at  Lisbon,  Dr.  Lushington  refused  to  adopt  as  his 
basis  either  the  market  price  at  Lisbon,  where  the  goods 
were  unsaleable,  or  the  value  in  London  without  deduc- 
tion. The  thing  really  saved  by  the  salvors,  he  said, 
was  the  value  in  London,  subject  to  a  reduction  in 
respect  of  the  cost  of  conveying  it  to  that  port,  and  the 
risk  of  its  never  arriving  (</).     Now,  in  fixing  relative 

(a)  T/ic  George  Bean  (1857),  1  where  Dr.  Lushington  said: — "The 
Swab.  290.  See  also,  to  the  same  proper  rule  in  civil  salvage  is,  to 
effect,  T/ii'  Xorma  (1860),  Lush.  124,      estimate  the  value  of  the  property 


SECT.  LXI.]   THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  '311 

values  for  contribution  to  general  average,  the  pro- 
portions will  be  the  same,  if  we  leave  out  of  view  the 
deduction  for  sea  risk,  this  i)eing  the  same  rateable  pro- 
portion, or  percentage,  for  each  portion  of  the  adventure. 
Hence,  in  all  cases  where  there  is  no  second  accident,  an 
adjustment  based  on  values  on  the  spot,  and  one  based 
on  ultimate  arrived  values,  will  give  precisely  the  same 
results.  A  difficulty  can  only  arise  when,  by  an  accident 
subsequent  to  the  outlay,  a  change  of  circumstances  has 
taken  place.  This  difficulty  is  not  really  formidable. 
It  is  only  necessary  to  determine  what  amount  of  loss  or 
damage  has  taken  place  subsequently  to  the  outlay ;  a 
calculation  which  verv  often  has  to  be  made  for  the 
purpose  of  claiming  on  the  underwriters ;  and  to  add 
this  sum  to  the  arrived  value. 

The  difficulty  is  only  serious  when  there  are  no 
arrived  values, — that  is,  when  the  ship  and  cargo  are 
either  totally  lost,  or,  from  subsequent  accident,  are  sold 
at  some  place  short  of  the  destination.  Here  there  are 
no  determinate  data  by  which  the  market  values  can  be 
regulated.  But  the  difficulty  is  not  greater  in  the  case 
of  a  wreck  with  salvage  than  m  that  of  an  utter  loss.  In 
this  latter  case,  the  difficulty  is  in  practice  somehow 
overcome  :  since,  when  there  is  an  utter  loss  following  a 

saved  at  the  place  where  the  services  items  of  deduction,  but,  dealing  with 

of  the  salvors  terminated."     Accord-  the  matter  roughly,  gave  salvage  on 

inglj',  the  question  before  him  being,  a  freight  estimated  at  about  half  the 

■whether   any   salvage    was    due    in  entire  amount,  the  part  of  the  voyage 

respect  of  freight,  when  the  salvage  performed  being  from  Honduras  to 

service  had  terminated    at   a   point  Bermuda,  and  the  part  left  unper- 

where  freight  was   not  yet  earned,  formed     being    from     Bermuda    to 

but  where  a  considerable  portion  of  Loudon.     In  the  case  of  salvage  for 

the  voyage  had  been  performed,  the  recapture,  where  the  proportions  due 

learned  judge  held  that  the  salvors  to   the  sah'ors  is  fixed    by   Act   of 

were  entitled  to  salvage  upon  a  con-  Parliament,  a  different  rule  prevails, 

siderablo  portion  of  the  freight.     H(?  {The    Progress    (1810),    Edw.     221; 

would  not  enter  into  a  detailed  cal-  The   Dorvtiu/    Fasler   (1S05),  6  Chr. 

culatiouas  to  what  items  were  proper  Eob.  88.) 


312 


TIME,  PLACE,  ETC.,  WHICH  REGULATE       [cHAP.  VL 


general  average  outlay,  it  has  never  been  contended  that 
the  outlay  should  not  be  repaid  at  all.  In  such  a  case 
the  best  approximation  that  can  be  made  is  accepted  and 
acted  on.  There  is,  then,  in  this  respect,  no  difficulty  in 
carrying  out  the  system  of  contribution  upon  values  on 
the  spot,  except  such  a  difficulty  as  already  exists,  and  is 
overcome,  in  the  system  now  adopted  in  practice. 

The  difficulties  which  have  been  started  with  respect 
to  the  shipowner's  right  of  lien  may  be  removed  by  one 
remark, — that  right  of  lien  is  insurable.  It  has  been 
determined  in  the  courts  that  a  shipowner's  right  of  lien 
on  cargo  in  respect  of  a  general  average  outlay  is  an 
insurable  interest  (b).  In  the  great  majority  of  cases,  if 
not  in  all,  a  shipowner,  who  has  been  drawn  upon  for 
advances  at  a  port  of  refuge,  has  time  and  oj^portunity  to 
make  an  insurance  which  will,  if  properly  framed,  com- 
pletely protect  him  against  his  risk  of  losing  the  cargo's 
share  of  the  outlay  by  reason  of  a  subsequent  accident 
which  may  deprive  him  of  his  lien. 

Thus  all  the  practical  difficulties  which  have  been 
suggested  disappear  upon  examination  (c). 

Such  are  the  main  arguments  on  either  side  of  this 
important  question.  It  is  a  question  which,  in  the 
present  divided  state  of  opinion  amongst  adjusters,  must 
pi'obably  remain  a  moot  point  until  settled  in  a  court  of 
law.     The  reasons  in  favour  of  taking,  in  the  case  of 


(b)  Briijgs  v.  Merchtid  Traders^ 
Association  (1849),  13  Q.  B.  167. 
See  Marine  Insurance  Act,  1906, 
s.  5  (2). 

(c)  I  have  not,  in  the  text,  dealt 
with  objection  No.  2,  namely,  that 
there  ought  to  be  but  one  adjustment 
of  the  entire  general  average,  and 
that  the  adoption  of  one  basis  for 
sacrifices   and  another  for  expendi- 


tures would  be  inconvenient.  The 
inconvenience  would  be  infinitesimal. 
There  must  be  one  adjustment,  but 
there  can  easUy  be  two  apportion- 
ments, on  different  contributory 
values,  followed  by  a  balance  of 
account  or  a  simple  sum  in  addition. 
Much  greater  complications  than  this 
are  often  dealt  with  by  adjusters 
without  difficulty. 


SECT.  LXII.  I       THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  313 

expenditures,  the  values  according  to  the  state  of  facts 
at  the  time  when  the  outlay  is  incurred  appear  to  me 
decidedly  to  preponderate  (c/). 

§  62.   When  a  ship  carries  cargo  destined  for  two  or  cargoes 

,  ,-  ^  •    1      ii  1  •  Pi  destined  for 

more  ports — a  practice   wnicn  the   extension   oi    steam  several  ports, 
navigation    has   rendered   much   more   frequent   than  it 
formerly  was — what  is  the  proper  place  for  adjusting  a 
general  average  ? 

Some  have  thought  that  the  proper  place  is,  the 
first  port  of  destination  for  any  portion  of  the  cargo  at 
which  the  ship  arrives  subsequently  to  the  general 
average  act — whether  that  act  be  a  sacrifice  or  the  in- 
curring of  an  expenditure.  This  port  is  the  termination 
of  that  adventure  which  is  common  to  all  the  contributors. 
The  subsequent  portion  of  the  voyage  is  a  matter  which 
concerns  only  a  portion  of  them.     If  the  general  average 

{d)  Mr.    Carver   (§  428)    and   Mr.  me,"   he  said,    ''that   this   proi)osi- 

MacArthur   (Ins.   2nd  edit,  p,   205,  tion,  which  is  found  in  Dkkntson  v. 

n.  (a) )  adoi^t  the  view  that  expendi-  Jurdine,   is   wholly    inapplicable    to 

tures  ought   to  be   adjusted  on  the  the  case  of  expenditiu-e,  and  I  think 

facts  as  they  exist  at  the  termina-  it  can  almost  be  demonstrated  to  be 

tion  of  the  adventure.     On  principle,  wi'ong  in  such  a  case,   because  the 

however,    the    view    developed    by  operation  of  saving  is  taken  for  the 

Mr.    Lowndes  in   this   argument  is  benefit  of    both    the   ship   and    the 

supported  by  the  judgment  of  Gorell  cargo,    leaving  out   the  freight  for 

Barnes,   J.,   in    Tlte    Mury    Thomas,  a  moment,  because  it  is  in  the  same 

[1894]    P.    108,   which  was  affirmed  position  as  the  ship  ;  and  therefore 

by  the  Court  of  Appeal,     (lb.    122.)  the  captain,  who  at  this  time,  under 

In  the  case  of  a  sacrifice  of  part  of  a  ordinary  circumstances,  acts  as  agent 

ship,    the   shipowner    is   entitled   to  for  the  person  whose  property  is  at 

recover  his  whole   loss  from  his  in-  risk,  spends  the  money  on  behalf  of 

surers,  leaving  them  to  obtain,   by  all  who  are  interested,  and  all  who 

virtue  of  subrogation  to  his  rights,  are  interested  must  contribute  to  it, 

the    contributions    due    from   other  and  therefore  the  shij^owner  ought 

parties.      (See   DicJceusaii.  v.  Jardine  only  to  contribute  so  much."   Accord- 

(1868),  L.  R.  3   C.   P.  639;   Marine  ingly  the  learned  judge  held  that  the 

Insurance  Act,  1906,  s.  66  (4).)     The  shipowner  could  only  recover  from 

learned  judge,   however,   refused  to  his  underwriters  the  ship's  propor- 

^Pply  this  rule  in  the  case  of  a  general  tion  of  the  general  average  expen- 

average  expenditure.     "  It  seems  to  diture. 


314  TIME,  PLACE,   ETC.,  WHICH  REGULATE       [cHAP.  VI. 

consists  of  the  jettison  of  goods  destined  for  this  first 
jjort,  the  owners  of  them  have  the  same  grounds  for 
claiming  an  immediate  and  absolute  indemnity,  unaffected 
by  the  risks  of  the  subsequent  voyage,  as  they  would 
have  were  the  remainder  of  the  cargo  intended  to  be 
delivered  at  the  same  place. 

If  this  be  so,  it  follows  that  the  law  of  this  first  port, 
the  values  of  all  the  property  there  and  at  that  time — to 
be  computed  on  the  principle  already  laid  down — and 
the  state  of  facts  which  then  and  there  exists,  are  to  form 
the  basis  of  the  adjustment  in  such  a  case(c). 

In  order  to  place  on  an  equal  footing  the  goods 
destined  for  the  first  port,  as  to  which  the  voyage  is 
completed,  and  those  which  have  still  to  perform  a 
further  portion  of  the  transit,  a  reduction  should  be 
made  from  the  contributory  value  of  the  latter,  equi- 
valent to  the  risk  of  non-arrival  at  their  port  of  ultimate 
destination. 

To  this  view,  however,  objection  has  been  taken  on 
the  following  grounds  : — The  ordinary  rule,  that  the 
adjustment  of  general  average  should  be  made  at  the 
port  of  discharge,  is  mainly  founded  on  considerations  of 
convenience,  and  particularly  because  it  is  there  that  the 
value  of  the  goods  can  be  most  fairly  estimated,  and  the 
rights  of  the  parties  most  effectually  enforced.,  and  it  is 
manifestly  convenient  that  the  law  to  be  applied  should 
be  the  law  of  the  places  where  the  rights  are  enforced  (/). 
But  this  reason  of  convenience,  in  the  case  of  cargo 
destined  for  two  different  ports,  would  seem  to  point 
rather  to  the  second  than  the  first  port.  It  would  be 
impossible  to  make  a  final  adjustment  at  the  first  port 
without  waiting  to  learn  tiie  result  of  the  entire  voyage, 

(e)  See  2  Parsons,  Ins.  360,  iu  con-  (/)  See  Simonds  v.  White  (1824), 

firmation  of  this  view.  2  B.  &  C.  805. 


il 


SECT.  LXII.]       THE  ADJUSTMENT  OF  GENERAL  AVERAGE.  315 

on  account  of  the  impossibility  of  determining  tlie  true 
contributory  value  of  the  goods  intended  for  the  second 
port.  Supposing  the  ship  were  lost  on  her  voyage 
between  the  two  ports,  could  the  cargo  then  on  board  be 
made  to  contribute  towards  the  previous  general  average? 
The  lien  on  those  goods  would  be  gone,  and  their 
liability  is  at  present  an  undetermined  and  doubtful 
question,  not  only  in  English  but  in  most  foreign  laws. 
Theoretically,  it  may  no  doubt  be  said  that,  as  things 
stood  when  the  ship  had  reached  the  first  port,  these 
goods,  equally  with  those  destined  for  that  port,  had 
derived  for  the  time  an  advantage  through  the  sacrifice, 
from  being  brought  in  safety  so  far  ou  their  voyage  ; 
which  advantage  might  fairly  be  measured  by  the  value 
of  those  goods  at  their  ultimate  market,  minus  the  value 
of  the  risk,  that  is  to  say,  the  cost  of  insuring  them  to 
that  place  from  tlie  first  port  of  discharge.  But  this 
would  probably  be  regarded  by  a  court  of  law  as  too 
theoretical :  the  chances  are,  that  an  English  court  would 
hold  that  the  owner  of  the  goods  in  the  case  supposed  had 
practically  derived  no  benefit  from  the  previous  sacrifice  ; 
this  latter  view  being  more  practical,  more  convenient, 
and  more  in  harmony  with  decided  cases.  If  this  be  so, 
since  an  adjustment,  to  be  enforced  on  the  spot,  would 
be  impossible  at  the  first  port  of  discharge,  ought  it  not 
to  be  made  at  the  second  ? 

To  this  it  must  be  answered  that  there  are  ditfi- 
culties,  perhaps  equally  serious,  in  the  way  of  making 
tlie  adjustment  at  the  second  port.  The  owners  of  the 
cargo  intended  for  the  first  port  would  surely  be  entitled 
to  say  that  they  ought  not  to  be  placed,  in  any  event,  in 
a  worse  position  by  reason  of  the  circumstance  that  some 
of  their  fellow  cargo-owners  are  not  ending  their  voyage 
where  they  are,  but  are  going  on  further.      Suppose,  for 


'^16  TIME,  PLACE,  ETC.,   WHICH  REGULATE       [CHAP.  VI. 

example,  that  the  general  average  consists  of  damage 
done  to  the  cargo  by  water  poured  in  to  extinguish  a 
iire,  and  that  according  to  the  law  of  the  first  poi-t  this 
damage  is  made  good  by  contribution,  while  by  the  law 
of  the  second  port  this  damage,  as  by  English  practice 
not  so  long  ago  w^as  the  case,  is  not  so  treated,  would  it 
be  tolerated  that  the  owners  of  cargo  for  the  first  port 
sliould  by  this  circumstance  be  deprived  of  their  claim 
for  compensation  ?  They  were  no  parties  in  any  sense 
to  this  second  portion  of  the  voyage,  and  their  legal 
rights  ought  not  to  be  affected  by  it.  Or,  to  take  a  case 
of  still  more  general  application  :  Suppose  that  by  the 
law  of  the  first  port  the  ship  contributes  to  general 
average  on  her  full  value,  but  by  that  of  the  second  port 
{e.g.,  hj  French  law)  on  the  half  value  only,  would  it  be 
right  that  this  circumstance  should  throw  on  the  owners 
of  the  cargo  destined  for  the  first  jjort  an  enhanced 
proportion  of  the  general  average  ? 

In  view  of  these  difficulties,  and  in  the  absence 
of  a  legal  decision  on  the  point,  the  course  adopted, 
in  a  case  of  some  importance  as  to  amount,  was  as 
follows : — The  steamer  ^arnia.,  having  on  board  cargo, 
partly  destined  for  Halifax  in  Nova  Scotia,  partly  for 
Portland  in  the  United  States,  met  with  an  accident 
which  obliged  her  to  put  back  to  Liverpool,  where  her 
cargo  was  discharged,  for  repair ;  after  which  she 
proceeded,  and  delivered  her  cargo  at  both  ports  Avith- 
out  further  mishap.  The  adjustment  of  general  average 
as  between  ship,  freight,  and  cargo,  was  prepared  by  a 
Halifax  and  a  United  States  adj  uster,  associated  together. 
They  drew  up  a  joint  statement  containing  two  columns 
for  general  average,  one  headed  "  Halifax,"  and  the  other 
"  Portland"  ;  and  they  certified  that  the  amounts  shown 
in  the  first  cokmm  were  the  amounts  payable  according 


SECT.   LXII.J       THE  ADJUSTMENT  OF  GENERAL  AVERAGE. 


31' 


to  British  law,  and  should  be  paid  by  the  owners  of  the 
cargo  delivered  at  Halifax,  and  the  amounts  shown  in 
the  second  were  according  to  American  law,  and  should 
be  paid  by  the  owners  of  the  cargo  delivered  at  Portland. 
And  this  was  acted  on  {<j). 

The  settlement  between  the  shipowner  and  his 
underwriters  on  ship  and  freight  presented  a  little  diffi- 
culty. The  policies  contained  the  clause:  "General 
average  and  salvage  charges  payable  according  to  foreign 
statement  if  so  claimed."  Was  the  owner  entitled  to 
claim  under  whichever  column  of  this  adjustment  he 
might  select  ?  If  he  might  do  so,  he  might  have  made 
a  large  profit,  by  claiming  on  the  ship  policy  under  the 
Portland  column,  and  on  the  freight  policy  under  the 
Halifax  column.  It  was  thought,  however,  that  he  was 
not  entitled  to  this,  but  could  only  treat  as  "the  foreign 
statement "  that  statement,  or  portion  of  statement, 
which  was  in  fact  operative  so  far  as  concerns  the  cargo. 
In  the  present  instance,  if  we  suppose  tlie  value  of  the 
Halifax  cargo  to  be  as  three,  and  of  the  Portland  cargo 
to  be  as  four,  the  whole  being  seven,  the  shipowner  was 
treated  as  entitled  to  four-sevenths  of  the  amount  in 
the  Halifax  column  and  three-sevenths  of  that  in  the 
Portland  column  of  this  composite  adjustment.  And 
this,  after  some  discussion,  was  agreed  to  {h). 


{(j)  The  question  which  arose  in 
this  case  is  discussed  by  Mr.  Carver 
(§§  425,  426),  who  comes  to  the  con- 
clusion that  on  the  whole  the  adjust- 
ment should  take  place  at  the  end  of 
the  voj'age,  on  the  basis  of  the 
arrived  values  as  there  ascertained. 
This  seems  to  be  the  riile  gene- 
rally acted  iipon  in  Continental 
countries. 

(/))  The  editors  confess  that  they 
do  not  understand  on  what  principle 


the  amount  recovered  by  the  ship- 
owner from  his  underwriters  was 
fixed  ;  and  the  difficulties  which 
may  arise  in  the  settlement  of  the 
general  average  between  the  ship- 
owner and  his  underwriters  seem  to 
them  a  strong  reason  for  not  adojjt- 
ing  the  course  followed  in  this  case, 
of  having  adjustments  on  different 
bases  with  the  different  sets  of  cargo- 
owners. 


ai8 


CHAPTER  VII. 

MODE  OF  COMPUTING  THE  AMOUNT  TO  BE  MADE  GOOD. 

SECT.  PAGE 

63.  Introduction  and  division  of  the  subject 318 

Part  I. — Disbursements. 

64.  Sale  of  cargo  to  raise  funds 321 

Eichardson  v.  Nourse,  and  other  decisions     321 

65.  Bottomry  loans 327 

G6.    Conflict  of  laws 328 

Gaetano  and  Maria 329 

Part  II. — Sacrifices. 

67.   (a)  Rules  for  computing  jettison 335 

In  case  of  arrival  of  ship 336 

Sales  afloat  or  "  to  arrive  "  disregarded 337 

Hoiv,  if  goods  jettisoned  are  damaged 337 

Effect  of  subsequent  accident     338 

Loss  of  freight  by  jettison      339 

(b)   Sacrifices  of  ship^s  materials      341 

Measure  of  damages 341 

Deduction,  neio  for  old 342 

No  deduction  on  first  voyage    344 

Rules  of  Adjusters^  Association 346 

Rule  when  ship  not  repaired    347 


§  63.  Having  thus  defined  the  time,  place,  and  state  of 
facts,  which  are  to  form  the  basis  of  the  adjustment, 
there  ought  to  be  little  difficulty  in  completing  this  por- 
tion of  the  subject,  by  pointing  out  what  amounts  are  to 
be  made  good  by  contribution.  The  subject  may  be 
considered,  first,  in  the  case  of  disbursements,  secondly, 
in  that  of  sacrifices. 


SECT.  LXIII.J  AMOUNT  TO  BE  MADE  GOOD. 


;ii9 


Part  I. — Disbursements. 

The  amount  to    be  replaced  is  simply  the  amount 
expended,  plus  the  cost  of  raising  funds. 

Concerning   the    amount    expended,    nothing    more  Amuunt  ex- 
need  here  be  said  :  for  we  have  dealt  with  the  condi- 
tions  wliich   determine   what    disbursements  are    to    be 
treated  as  expenditures  for  the  common  safety  of  shi[) 
and  cargo. 

Several,  and  some  of  them  difficult,  questions,  how-  Costofraismsr 
ever,  arise  in  connection  with  the  cost  of  raising  funds. 

On  principle,  as  the  entire  business  of  raising  funds  should  be 

p  1  1.,  ■■  • ,       M'     ^      ^  borne  alike  bv 

lor  genei'al  average,  like  general  average  itseli,  belongs  aii  the  partie's 
to  that  reserved  portion  of  the  contract  of  affreightment, 
"  the  perils  of  navigation  excepted,"  for  which  no  man 
is  directly  responsible,  it  would  seem  obvious  that  the 
liability  to  supply  the  funds  is  a  mere  appurtenance  to 
the  liability  to  pay  the  general  average,  and  should  fall 
conjointly  on  all. 

In  those  old  times  when  the  merchants  sailed  with  oldest  known 

,  .   .  .  .  IP  practice  as  tu 

the  ships,  an  ingenious  arrangement,  as  we  learn  irom  this. 
the  Consolarlo,  was  in  common  use,  vvherebv  these  mer- 
chants,  often  having  on  board  large  sums  of  money, 
proceeds  of  former  or  materials  for  future  ventures,  or 
in  any  case  having  at  hand  goods  by  the  sale  of  which 
money  could  be  raised,  were  the  ordinary  financiers  on 
any  emergency,  being  bound  in  case  of  need  to  supply 
the  master  with  either  money  or  goods  for  sale.  They 
were  repaid  and  secured  in  the  same  method  as  in  the 
case  of  jettison  ;  that  is  to  say,  if  the  ship  arrived,  they 
were  put  on  a  par  with  their  co-adventurers  by  a  prompt 
and  secure  repayment,  but  if  she  perished  on  the  voyage, 
they    got    nothing    be3^ond    the    consolation    that    they 


320 


MODE  OF  COMPUTING  THE 


fCHAP.  VI  [. 


Authority  of 
master  when 
alone. 


were    no    worse    off    than    if    they   had    lent    or    sold 
nothing  («). 

When  the  merchants  began  to  live  ashore,  the 
authority  of  the  master  was  so  far  extended,  that  he  had 
power  to  do  for  the  merchants  that  which  thev  would 
presumably  have  done,  or  have  been  obliged  to  do,  had 
they  been  there  :  that  is,  in  case  of  necessity,  when  no 
money  was  to  be  had  from  the  sliipowner,  or  when  not 
enough  was  to  be  had  by  pledging  the  ship  and  freight 
in  the  familiar  way  of  bottomry,  to  pledge  likewise  the 
cargo,  or,  if  that  could  not  be  done,  even  to  sell  so  much 
of  it  as  would  raise  the  requisite  amount.  It  would  take 
too  long  here  to  enter  into  a  full  discussion  of  the  law  of 
bottomry  or  of  these  forced  sales  ;  but  one  or  two  points 
may  be  mentioned,  as  to  which  the  laws  of  different 
countries  are  not  yet   agreed,  and  which  consequently 

Questions    of    the    conflict    of 


give 
laws. 


rise   to 


niterestmg 


(rt)  Consolado,  Chap.  Gl  (106). 
"  Again,  the  merchant  is  bound  to- 
wards the  master  of  the  ship  [senyur 
de  la  nau)  that  if  the  merchant  have 
money,  and  if  they  are  in  a  place 
where  the  master  has  need  of  supply 
or  things  necessary  for  the  ship,  the 
merchant  must  lend  it  to  him,  so  far 
as  the  sailing-master  inotxtr)  and 
the  other  merchants  shall  agree  that 
he  ought  to  do.  And  on  this  ac- 
count all  the  part-ownei's  [personers) 
who  shall  be  in  the  ship,  and  the 
lenders  {prestadors)  must  all  bind 
themselves  {oUigar)  to  the  said  mer- 
chant. But  if  the  master  [seinjor) 
of  the  ship,  or  the  part-owners,  or  the 
lenders,  shall  find  any  man  who  will 
lend  to  them,  the  aforesaid  merchant 
is  not  bound  to  lend  them  anything." 


(2  Pard.  109.) 

Chap.  62  (107).  "Again,  ftuther,  if 
the  master  of  the  ship  shall  be  in  need 
of  money,  and  cannot  obtain  enough 
as  aforesaid,  and  is  in  a  desert  place, 
and  if  the  said  money  is  necessary 
for  the  dispatch  of  the  ship,  and  if 
the  said  merchants  have  not  money, 
they  are  bound  to  sell  of  their  mer- 
chandize to  dispatch  the  ship ;  and 
no  lender  {prcstad6r)  or  part-owner 
can  say  anything  or  make  opposition 
until  the  said  merchants  shall  have 
been  paid,  excepting  {salvo)  the  wages 
of  the  mariners.  It  is,  however,  to 
be  understood,  that  the  merchant 
shall  see  and  make  sure  that  that 
which  he  lends  is  for  the  dispatch  of 
the  ship  and  necessary  for  her.'' 
(2  Pard.  110.) 


SECT.  LXIV.]  AMOUNT  TO  BE  MADE  GOOD.  S^l 

Forced  sale  of  goods. 

§  64.  One  complication  arose  from  the  English  Sale  of  cargo 
common  law  judges  formerly  not  having  quite  recognized 
to  its  full  extent  the  now-established  doctrine,  that  in 
what  tlie  master  spends  or  sacrifices  over  a  general 
average  act  he  is  to  be  treated  as  acting,  not  in  any 
special  sense  as  the  agent  or  servant  of  the  shipowner, 
qua  carrier,  but  as  the  agent,  either  of  all  parties,  as 
accepting  the  gift,  or  of  that  one  of  the  co-adventurers 
who,  on  an  implied  condition  of  repayment,  makes  the 
gift  for  the  sake  of  all. 

The  first  class  of  decisions  I  will  mention  bear  upon 
the  difficulty  how  to  treat  the  case  in  which  the  actual 
proceeds  of  the  goods  thus  sold  exceed  the  amount  to 
which  their  owner  would  be  entitled  in  the  event  of  safe 
arrival ;  which  may  happen,  either  because  of  their 
fetching  an  abnormal  profit  on  the  forced  sale,  or  by 
reason  of  the  remainder  of  the  cargo  being  cast  away  on 
the  way  home. 

In  Richardson  v.  Nourse  the  question  was,  whether  mchardson  v. 
the  owner  of  goods  sold  in  Mauritius  to  pay  repairs  ^ 
to  the  ship  and  other  port  of  refuge  expenses  was 
entitled  to  their  net  value  at  the  port  of  destination, 
or  to  their  actual  proceeds,  the  latter  being  the 
larger  sum  of  the  two.  Three  arbitrators,  to  whom 
the  matter  had  been  referred,  had  pronounced  tliat 
the  owner  was  entitled  to  the  larger  sum  ;  and  the 
court,  on  being  appealed  to,  refused  to  disturb  tlicir 
award.  ''  The  goods  have  been  sold,"  said  Abbott,  C.  J., 
"  for  the  necessary  repairs  of  the  ship  while  on  the 
voyage,  and  have  actually  fetched  a  higher  price  than 
they  would  if  they  had  arrived  at  the  port  of  destina- 
tion.    There  is  no  decided  case  precisely  in  point.     The 


322  MODE  OF  COMPUTING  THE  [CHAP.  VI]. 

possibilitv,  even,  of  the  goods  fetching  any  price  higher 
than  tliat  of  the  port  of  destination  did  not  occur  to  any 
of  the  writers  whose  works  have  been  referred  to  in  the 
course  of  the  argument.  It  must  be  recollected,  too, 
that  this  was  a  reference  to  mercantile  men,  and  they, 
perhaps,  may  have  decided  the  question  upon  mercantile 
usage.  I  cannot  say  that  their  decision  was  wrong ;  for 
by  holding  that  tlie  owner  of  a  ship  may  lose,  but  that 
he  can  never  gain,  by  such  a  sale  as  this,  we  shall 
furnish  the  strongest  possible  inducement  to  him  to  take 
care  that  all  the  goods  are  conveyed  to  their  place  of 
destination.  I  do  not  go  the  length  of  saying  that 
where  arbitrators  proceed  on  a  mistake  of  a  clear  prin- 
ciple of  law,  the  court  will  not  set  aside  their  award : 
but  I  cannot,  in  this  case,  say  that  the  arbitrators  have 
decided  contrary  to  any  clear  well-established  principle 
of  law,  and  I  think,  therefore,  that  this  rule  should  be 
discharged."  And  Holroyd,  J,,  said:  ''There  is  strong- 
ground  for  contending  that  the  owner  of  goods  should 
receive  a  compensation  for  the  goods  sold  according  to 
their  highest  value.  If  the  master  could  get  money  by 
other  means,  he  had  no  riglit  to  sell ;  and  if  he  had  sold 
the  goods,  the  owner  ought  to  be  entitled  to  the  actual 
proceeds ;  for  the  owner  of  the  ship,  in  the  event  that 
has  happened,  ought  not  to  be  allowed  to  make  any 
profit  by  such  sale  "  (h). 
Atkinsons.  Atkinsoti  V.  Stephens  expressly  decides  no  more  than 

that,  if  the  ship  is  lost  on  her  way  home,  the  owner  of 
goods  sold  at  a  port  of  refuge  to  raise  funds  for  repairing 
her  is  not  entitled  to  recover  the  market  value  at  the 
port  of  destination.  In  the  argument,  it  seems  to  have 
been  admitted  by  counsel  for  the  shipowner,  on  the 
authority  of  Richardsnn  v.  Nourse.  that  he  was  entitled 

{h)  Richardson  v.  Nourse  (1819),  3  B.  &  Aid.  237. 


Stephens. 


SECT.  LXIV.J  AMOUNT  TO  BE  MADE  GOOD. 

to  the  amount  of  their  proceeds  ;  and  Alderson,  B.,  in 
the  course  of  the  argument,  said  :  "  The  owner  of  the 
goods  is  entitled  to  the  amount  which  they  actually 
fetched,  although  the  vessel  does  not  arrive ;  but  if  she 
does,  then  he  is  entitled  to  the  sum  which  such  goods 
would  fetch  in  the  market.  The  owner  of  the  goods 
does  therefore,  in  fact,  derive  an  advantage  from  the 
sale  "  ((?). 

Hopper  V.  Biirness  was  a  case  tried  in  1876,  in  the  Hopper  v. 

Bi'.nuss. 

Common  Pleas  Division.  The  ship  was  chartered  to 
carry  a  cargo  of  coals  from  Cardiff  to  Point  de  Galle. 
On  the  voyage  she  was  disabled  in  a  storm,  and  had  to 
put  into  the  Cape  of  Good  Hope,  where,  in  order  to 
defray  the  expense  of  the  repairs,  the  master  sold  a  por- 
tion of  the  coals.  Subsequently  she  proceeded,  and 
arrived  at  her  destination.  An  adjustment  of  average 
was  drawn  up,  in  which  the  owner  of  the  coals  was  cre- 
dited with  the  actual  proceeds  of  his  coals,  the  amount  of 
which  was  considerably  more  than  either  the  cost  of 
them,  or  the  amount  they  would  have  fetched  at  Point  de 
Oalle,  after  deduction  of  the  freight.  In  this  adjustment 
no  allowance  was  made  in  respect  of  the  freight  on  these 
€oals.  The  shipowner  sued  the  owner  of  the  coals, 
claiming  to  be  entitled  to  at  least  freight  pro  rata  itineris. 
The  Court  of  Common  Pleas,  however,  decided  against 
his  claim.  "Freight  pro  raid,''''  said  Brett,  J.,  ''is  only 
payable  when  there  is  a  mutual  agreement  between  the 
charterer  or  shipper  and  the  captain  or  shipowner, 
whereby  the  latter  being  able  and  willing  to  carry  on 
the  cargo  to  the  port  of  destination,  but  the  former 
desiring  to  have  the  goods  delivered  to  him  at  some 
intermediate   port,   it   is    agreed  that  they  shall   be  so 

(c)  Atkinson  v.  Stephens  (1852),  7  Exch.  567,  at  p.  575.    See,  on  this  subject, 
Phillips,  Ins.  §  1364. 

y2 


323 


324  MODE  OF  COMPUTING  THE  [CHAP.  VII. 

delivered,  and  the  law  then  implies  a  contract  to  pay 
freight  jwo  rata  itineris.''''  This  evidently  was  not  the 
case  here.  "  The  charterer,"  the  learned  judge  con- 
tinued, "  has,  I  think,  an  option  to  treat  the  proceeds  of 
the  sale  as  a  loan ;  or  may  say.  You  have  sold  my  goods 
against  my  will,  and  though  by  the  maritime  law  that  is 
not  a  wrongful  sale,  still  I  am  entitled  to  and  claim  an 
indemnity  against  any  loss  occasioned  by  the  sale.  If  he 
selects  the  former  alternative,  what  is  there  to  give  rise 
to  an  implication  that  freight  pro  rata  is  payable  ?  If  he 
thinks  that  the  goods  have  fetched  more  at  the  inter- 
mediate 25ort  than  the  remainder  will  do  at  the  port  of 
destination,  why  may  he  not  treat  the  transaction  as  a 
loan  at  once,  and  sue  for  the  amount  before  the  ship 
arrives  at  her  destination  ?  If  the  ship  should  be  lost  on 
her  voyage  between  the  intermediate  port  and  the  port 
of  destination,  the  charterer  has  no  option ;  he  cannot 
ask  for  an  indemnity  on  the  footing  that  the  goods  would 
have  fetched  more  at  the  port  of  destination.  The  basis 
of  the  claim  of  indenmity  in  such  a  case  is  the  sup- 
position that  the  goods  would  fetch  more  .at  the  port 
of  destination  than  they  did  where  sold.  If  the  ship  is 
lost  the  charterer  or  shipper  never  can  claim  an  indem- 
nity against  the  shipowner ;  the  adventure  is  lost  by 
perils  of  the  sea.  But  I  apprehend,  though  he  could 
not  claim  an  indemnity,  he  could  treat  the  transaction 
as  a  forced  loan,  and  claim  the  amount  of  the  price 
for  Avhich  the  goods  were  sold.  If  the  goods  fetch 
more  at  the  intermediate  j^ort,  the  owner  of  the  cargo 
naturally  would  elect  to  treat  the  matter  as  a  loan  ;  but 
when  he  thinks  it  for  liis  interest  to  insist,  and  does 
insist,  on  an  indemnity,  on  the  footing  that  the  value  of 
the  goods  must  be  treated  as  if  they  were  carried  to  their 
destination,  then  he  must  allow  for  the  freight  that  would 


SECT.  LXTV.]  AMOUNT  TO  BE  MADE  GOOD. 


325 


have  been  earned  by  carrying  them  there.  Here  the 
defendant  had  a  right  to  treat  the  proceeds  of  the  sale  as 
a  loan,  and  did  so,  and  under  those  circumstances  I  see 
nothing  to  raise  an  implication  of  a  liability  to  pay  freight 
pro  rata.  This  decision  may  seem  hard,  but  the  hardship, 
if  any,  arises  from  the  form  of  the  contract  entered  into. 
The  loss  to  the  shipowner  is  a  loss  by  maritime  perils, 
and  the  answer  to  any  argument  of  hardship  seems  to 
me  to  be  that  this  is  a  case  in  which  the  proper  remedy 
is  by  insurance  of  freight "  {d\ 

The  same  principle  was  applied,  in  a  somewhat  re-  Pirie v. Middle 
markable  manner,  by  Watkin  Williams,  J.,  in  Piric  v. 
Iliddle  Dock  Co.  [e),  where  a  cargo  of  coals,  damaged  by 
water  poured  in  to  extinguish  a  fire,  was  sold  at  a  price 
far  beyond  its  net  value  (less  freight)  at  the  port  of  des- 
tination. The  merchant  was  held  entitled  to  receive  the 
entire  proceeds,  and  the  shipowner  to  recover  his  loss  of 
freig-ht  as  a  general  average,  so  that  the  merchant  re- 
covered an  abnormal  unexpected  profit — it  might  be 
double  or  treble  the  cost  of  his  goods — at  the  expense, 
virtually,  of  the  underwriters  on  ship,  freight,  and 
cargo. 

All  these  cases,  it  is  observable,  apply  solely  or 
principally  to  the  raising  of  money  for  repairing  the 
ship,  or  for  requirements  of  the  master  not  strictly  be- 

[d)  Hopper  v.  Burness  (1876),  1  more  than  its  value  at  the  port  of 
C.  P.  D.  137,  at  p.  141.  destination,    the    shipowner    or    his 

(e)  Pirie  V.  Middle  Dock  Cu.  [ISSl).  underwriters  were  relieved  from  lia- 
44  L.  T.  426.  The  shipowners  did  bility  to  contribute  to  the  sacrifice  of 
not  dispute  the  right  of  the  cargo-  the  cargo,  so  that  the  merchant's 
owners  to  receive  the  proceeds  of  the  profit  by  the  sale  was  not  gained  at 
sale,  and  the  only  qiiestion  decided  anyone's  expense.  An  adjustment 
was,  that  the  shipowners  were  en-  on  the  footing  that  there  had  been 
titled  to  a  contribution  in  general  no  sacrifice  of  cargo,  but  only  one  of 
average  for  the  freight  of  the  damaged  freight,  seems  to  the  editors  the 
cargo.  Owing  to  the  fortunate  acci-  projjer  one  under  the  circumstances 
•dent  that  the  damaged  cargo  realized  of  the  case. 


326 


MODE  OF  COMPUTING  THE 


[chap.  VII. 


longing  to  general  average  ;  or  so  at  least  it  seems  to 
iiave  been  assumed  in  the  judgments.  Were  it  other- 
wise, i.e.^  had  the  exp(3nditure  which  necessitated  the 
sale  of  cargo  to  raise  money  been  strictly  an  extraordi- 
nary expenditure  for  the  common  safety,  it  would  not 
be  easy  to  reconcile  the  arguments  by  which  the  judges 
throw  a  special  liability  upon  the  shipownei-,  treating 
the  sale  as  in  some  peculiar  sense  an  act  of  his,  with  the 
present  doctrine  as  to  the  master's  agency  on  behalf  of 
all.  If  this  forced  sale  is  to  be  treated  like  a  jettison, 
the  proprietor  ought,  in  no  event,  to  be  in  a  better 
position  than  if  some  other  person's  goods  had  been 
taken  (/) — a  consideration  apparently  left  wholly  out  of 
sight  in  these  judgments (^). 


( / )  "  The  leading  principle  of 
general  average,"  says  Arnould,  "is 
tins  : — Tliat  all  the  parties  interested 
ill  the  adventure,  for  the  benefit  of 
luhich  the  loss  ivas  incurred,  should  be 
sufferers  hy  the  loss  in  exact  proportion 
to  the  extent  of  their  respective  interests, 
but  no  farther  ;  and  this  object  can 
only  be  attained  when  the  party 
whose  property  has  been  sacrificed, 
whose  money  has  been  disbursed, 
or  whose  credit  has  been  pledged  for 
the  general  benefit,  is  i^laced,  by  the 
result  of  the  adjustment,  exactly  in 
the  same  position  he  would  have 
stood  in,  had  the  sacrifice  been  made, 
the  expense  incurred,  or  the  credit 
pledged,  not  by  himself,  but  by  some 
other  of  his  co-adventurers."  (2  Arn. 
2nd  edit.  p.  937.) 

(,7)  Several  of  the  English  writers 
adopt  the  view  that  the  sale  of  part 
of  the  cargo  to  raise  funds  to  defray 
general  average  expenses  is  to  be 
treated  as  a  sacrifice  of  the  goods 
analogous  to  a  jettison.  (See  Stevens, 
p.  16;  Benecke,  p.  261  ;  2  Arnould, 


2nd  edit.  p.  909;  Carver,  §  432.) 
Arnould  and  Carver  also  state,  on 
the  authority  of  Richardson  v.  Nourse, 
supra,  that  when  the  goods  have 
realized  more  than  their  net  value  at 
the  port  of  destination,  they  must  be 
contributed  for  on  the  higher  value ; 
but  Stevens  and  Benecke  consider, 
like  Mr.  Lowndes,  that  even  in  this 
case  the  goods  should  be  contributed 
for  on  their  estimated  value  at  the 
port  of  destination,  on  the  principle 
that  those  who  would  have  borne  the 
loss  ought  to  receive  the  profit. 
Equity  certainly  requires  that  if 
there  be  a  loss  on  the  sale,  the  goods 
sold  should  be  contributed  for  on  their 
value  at  their  destination.  Yet  it 
may  be  argued  that  equity  does  not 
require  that  the  shipowner  and  the 
other  cargo-owners  should  bo  placed 
in  a  better  position  than  if  he  or  the 
contributions  of  all  the  parties  had 
provided  the  funds  for  the  port  of 
refuge  expenses.  They  certainly 
would  be  in  a  better  position  in 
every  case  where  the  actual  jiroceeds 


i 


SECT.  LXV.]  AMOUNT  TO  BE  MADE  GOOD. 


327 


Bottomrff  loans  on  cargo, 
S    Go.   The   master's    riHit   to    raise    money    by    a  Bottomry 

<J  ^  ^  ,  loans  on 

bottomiy  loan  on  the  cargo  comes  into  phiy  only  when  cargo. 


of  the  goods  exceed  their  net  value 
at  the  place  of  destination  (together 
with    the    freight  thereon,   if    such 
freight   has   also   to   be   contributed 
for).     In  all  such  cases   the    fairest 
rule,   it   is   submitted,   would  be   to 
make  all  the  parties  contribute  the 
amount  of  the  general  average  ex- 
penditure, and   allow  the  owner  of 
the   goods    sold  to  have  the   profit 
which,    without    any   loss    to   other 
parties,  he  could  derive  from  the  sale. 
If,  as  no  doubt  would  usually  be 
the  case,  the  ship  and  the  cargo  have 
at  the  time  of  the  sale  already  been 
placed  in  safety,  it  may,  however,  by 
a  strict  application  of  the  principle 
laid  down  in  Svendseii  v.  Wallace,  be 
contended  that  the   sale  is   not    in 
itself  a  sacrifice.    Nor,  it  may  further 
be  argued,  can  the  sale  be  regarded 
as  a  loss  consequential  on  a  previous 
general  average  act,  for  it  is  really 
due  to  the   circumstance    that    the 
shipowner    has     not    j^rovided     the 
necessary   funds    for    the   repair   of 
the    ship    and    the   port    of    refuge 
expenses,    and    that    the   master    is 
unable  to  raise  funds  in  any  other 
way.     On  this  view,   the  sale  may 
be  regarded  as  a  loan  of  the  goods  to 
all  the  parties  who  have  to  bear  the 
general  average  expenses,  and  if  the 
proceeds  of  the   sale   are  less  than 
the  net  arrived  value  of  the  goods, 
together  with  the  freight,  the  differ- 
ence may  be  treated  as  the  expense 
of    providing   the    necessary   funds, 
and,  as   such,  part    of    the   general 
average  loss.      But  if  the   sale   bo 
regarded  as  a  loan  of  the  goods,  a 
difficulty  arises  if  the  ship  and  the 


rest  of  the  cargo  be  afterwards  lost. 
If  the  proceeds  of  the  sale  are  to  be 
reimbursed  to  the  owner  of  the 
goods  sold,  he  obviously  gains  an 
unfair  benefit  at  the  expense  of  the 
other  parties ;  for  if  his  goods  had 
remained  on  board,  they  would  have 
shared  the  fate  of  the  rest  of  the 
adventure.  To  avoid  this  result,  it 
might  be  necessary  to  treat  the 
transaction  as  a  loan  repayable  only 
on  the  completion  of  the  voyage  ; 
but  as  the  theory  of  a  loan  has  never 
been  adopted  or  discussed,  there  is 
no  authority  for  imj^lying  such  a 
term  in  this  fictitious  transaction. 

Another  view  may  also  be  sug- 
gested, viz.,  that  it  is  primarily 
the  duty  of  the  shipowner  to  provide 
the  necessary  funds  for  the  ship's 
repairs  and  expenses  at  a  port  of 
refuge,  and  as  these  funds  have  in 
effect  been  provided  by  the  owner  of 
the  cargo,  the  latter  is  entitled  to 
treat  the  transaction  as  in  the  nature 
of  a  loan  to  the  shipowner.  (See  the 
remarks  of  Brett,  J.,  in  Hopper  v. 
Barness,  ante,  p.  324.)  On  this  . 
theory,  even  though  the  ship  and 
cargo  were  subsequently  lost,  it  is 
apprehended  that  the  owner  of  the 
goods  sold  would  be  entitled  to  claim 
the  proceeds  of  the  sale  from  the 
shipowner.  (See  Atkinson  v.  Stephens, 
ante,  p.  322  ;  Hopper  v.  Burness,  ante, 
p.  324.)  The  latter  would  then  have 
the  same  right  to  recover  the  amount 
from  the  interests  at  risk  when  the 
general  average  expenditure  was 
incurred  as  (according  to  the  view 
already  put  forward)  he  has  when  he 
has  himself  disbursed  the  expenses. 


328 


MODE  OF  COMPUTING  THE 


[chap.  VII. 


he  has  exhausted  every  other  expedient  except  that  of 
sellmg  it ;  that  is  to  say,  when  no  money  is  to  be  had 
by  applying  to  the  shipowner,  or  pledging  his  personal 
credit,  or  by  a  bottomry  loan   on  the   ship  and  freight 
only.     It  has  from  very  old  times  been  requisite  that 
the  shipowner  should  first  be  communicated  with,  when- 
ever it  was  possible  to  do  so  without  unduly  delaying 
EngUsh  rule :  tlio  voyagc.     Morc  reccntlv,  in  England,  and  some  other 
firat  ap^y  to    countrics,  tliis  rule  has  been  extended  to  the  owners  of 
c^o^i'f         the  cargo;  and,  by  the  law  of  those  countries,  no  bond 
prac  ica  c.      ^^^  cargo  is  Valid  if  this  precaution  has  been  neglected  ; 
that  is  to  say,  unless,  before  borrowing,  the  master  has 
first  applied  to  the  owners,  consignees,  or  shippers  of  the 
cargo,  if  lie  knows  how  to  reach  them  in  time,  and  this 
by  telegram,  if   necessary,  giving   such   information   of 
his  requirements   and  intentions   as  may  give  them  an 
opportunity    of    supplying   him    in    some   less    onerous 
method  (h). 

§  66.  Tliis  rule,  which  is  by  no  means  universal  in 
all  countries,  indicates  probably  a  first  step  in  the  second 
great  transition  in  commerce,  a  transition  which  in  point 
of  importance  is  hardly  if  at  all  exceeded  by  the  first 
great  revolution  so  often  alluded  to,  when  the  merchants 


If,  on  the  other  hand,  the  voj-age  were 
completed  the  owner  of  the  goods 
covild,  no  doubt,  elect  to  be  paid  their 
net  value  at  their  destination  (see 
lf<ij)per  V.  Burness,  ante,  p.  324) ;  and 
in  the  event  of  his  doing  so,  the 
shipowner  would,  it  is  submitted,  be 
entitled  to  treat  the  loss  on  the 
sale,  i.e.,  the  difference  between 
such  net  value  and  the  proceeds  of 
the  goods,  as  the  cost  of  raising 
the  necessary  funds  to  defray  the 
general  average  expenditure,  and  to 
recover    this    loss,    as    well    as  the 


expenditure,  in  general  average. 

(/t)  The  cargo-owners,  if  they  are 
known  to  the  master,  are  no  doubt 
the  proper  persons  with  whom  to 
communicate ;  but  where  a  naaster, 
not  knowing  who  were  receivers  of 
the  cargo,  ajjplied  for  instructions  to 
the  shipping  agents  at  the  jjort  of 
loading,  and  they  referred  him  to 
Lloyd's  agent  at  the  port  of  distress, 
on  whoso  advice  he  acted,  the  Court 
of  Session  held  that  he  had  discharged 
the  duty  of  communication.  {Klein 
V.  Lindsay  (1910),  Sess.  Cas.  230.) 


SECT.  LXVI.]  AMOUNT  TO  BE  MADE  GOOD.  329 

ceased  to  live  on  board.  Steam  in  its  various  forms,  rail- 
ways, and  the  electric  telegraph,  with  the  various  orga- 
nizations which  these  have  rendered  possible,  now  bring 
the  owners  and  insurers  of  the  cargo  almost  as  near  to 
the  distressed  shipmaster,  both  with  counsel  and  funds, 
as  in  the  older  time :  imposing  duties  on  the  former, 
and  limiting,  to  a  corresponding  extent,  the  authority  of 
the  latter. 

This  change  has  led  to  an  interesting  question  or 
two  on  the  conflict  of  laws,  with  which  this  section  may 
be  closed. 

A  question  arose  in  Admiralty  on  the  validity  Gaetamand 
of  a  bottomry  bond  on  cargo  taken  at  Fayal  by  the 
master  of  the  Italian  ship  Gaetano  and  Maria,  for  a  voyage 
for  London.  It  appeared  that  the  master  had  given  no 
previous  notice  of  his  intention  to  the  owners  of  the 
cargo,  which  there  was  time  enough  for,  but  which  the 
master  jDleaded  that  by  the  laws  of  Italy  he  was  not 
bound  to  do.  Thereupon  the  question  arose  whether,  on 
such  a  point,  the  law  of  the  flag,  the  Italian  law,  or  that 
of  this  country  should  prevail.  In  the  court  below,  the 
Admiralty  Division,  Sir  Robert  Phillimore  held,  on  the 
authority  of  Dr.  Lushington,  in  The  Hamburg  (/),  that 
the  general  maritime  law  as  administered  in  England 
was  to  be  applied,  and  not  either  the  lex  loci  contractus 
nor  the  law  of  the  ship's  flag.  The  well-known  principle 
laid  down  in  Lloijd  v.  Guibert  (/:)  was  not,  in  the  opinion 
of  the  learned  judge,  applicable  to  the  present  case, 
because  the  question  there  was,  by  what  law  a  contract 
of  affreightment,  and  not  the  right  of  a  master  to  hypo- 
thecate cargo,  should  be  governed  (/).  This  decision, 
however,  was  reversed  in  the  Court  of  Appeal. 

(/)  (1863),  Br.  &  Lush.  2j;J,  259.  (A-)  (1865),  L.  E.  1  Q.  B.  115,  125. 

(0  (1881),  TIM),  l.atp.  4. 


330  MODE  OF  COMPUTING  THE  TCHAP.  VII. 

Brett,  L.  J.,  said:  'If  this  ship  had  been  an  English  ship,  if 
the  captain  had  been  an  English  master,  and  if  the  owners  of  the 
cargo  had  been  English  subjects,  there  is  no  doubt  that  the  master 
would  have  had  no  authority  to  bind  the  owners  of  the  cargo  unless 
certain  necessities  had  arisen.  The  ship  must  have  been  in  a  state 
of  distress,  and  in  a  port  of  distress  where  the  owner  of  her  had 
no  means  or  credit  by  which  to  find  the  money  required  for  doing 
the  necessary  repairs;  and  besides  this,  in  order  to  require  the 
hypothecation  by  bottomry  of  the  cargo,  the  value  of  the  ship  must 
not  of  itself  be  large  enough.  Moreover,  if  this  had  been  an  English 
ship,  and  an  English  captain,  even  though  all  these  necessities  had 
existed,  yet  the  master  would  not  be  authorized  to  charge  the  cargo 
if  before  doing  so  he  had  the  means  of  communicating  with  the 
owner  of  the  cargo  within  a  reasonable  time,  so  that  on  receiving 
notice  the  owner  of  the  cargo  might  determine  whether  he  would 
allow  the  cargo  to  be  bottomried,  or  whether  he  would  take  other 
means  for  the  disposal  of  the  cargo.  Therefore,  if  this  had  been 
an  English  ship,  there  can  be  no  doubt  but  that  the  cargo  of  the 
defendants  would  not,  on  the  facts  pleaded  in  this  case,  have  been 
liable,  because  it  is  admitted  that  before  hypothecating  the  cargo 
a  communication  might  have  been  made  by  the  captain  to  the  cargo- 
owners  "  (m). 

The    learned    judge    then    proceeded    to    consider 

whether  this  rule  must  bind  an  Italian  ship.     This  must 

depend,  he  said,  on  the  nature  of  the  thing  to  be  proved. 

Now  this  was  not  a  question  of  procedure,  to  be  governed 

by  the  lex  fori.     Nor  was  it  a  question  concerning  the 

terms  of  the  contract,  to  be  governed  b\'  the  law  of  the 

lex  loci  contractus,  for  the  master  had  no   power  under 

the  contract  of  carriage  to  deal  thus  with  the  cargo. 

"  What,"  he  said,  "  is  the  nature  of  that  which  has  to  be  proved? 
It  is  the  authority  of  the  master.  .  .  .  This  authority  of  the 
master  of  the  ship  to  hypothecate  the  ship  or  cargo  is  peculiar.  It 
does  not  arise  merely  out  of  a  contract  of  bailment,  for  that  contract 
gives  no  such  right.  It  does  not  arise  even  out  of  a  contract  of 
carriage  on  land.  I  doubt  whether  it  arises  on  a  contract  of  sea 
carriage,  where  it  is  all  within  the  realm,  but  it  is  not  necessary 

(m)  (1882),  7  P.  D.  at  p.  147. 


SECT.  LXVI.]  AMOUNT  TO  BE  MADE  GOOD. 

that  this  should  be  now  decided.     It  does  arise  where  goods  are 
shipped  on  board  a  ship  to  be  carried  from  one  country  to  another. 
That  is  acknowledged  by  the  maritime  law  of   England,  and,  as 
far  as  I  know,  is  equally  acknowledged  in  every  maritime  country. 
It  arises  from  the  necessity  of  things;  it  ai-ises  from  the  obligation 
of  the  shipowner  and  the  master  to  carry  the  goods  from  one  country 
to  another,  and  from  its  being  inevitable  from  the  nature  of  things 
that  the  ship  and  cargo  may  at  some  time  or  other  be  in  a  strange 
port  where  the  captain  may  be  without  means,  and  where  the  ship- 
owner may  have  no  credit  because  he  is  not  known  there,  that  for 
the  safet}  of  all  concerned,  and  for  the  carrying  out  of  the  ultimate 
object  of  the  whole  adventure,  there  must  be  a  power  in  the  master 
not  only  to  hypothecate  the  ship  but  the  cargo.     That  power  of 
the  master  does  not  arise  out  of  the  bill  of  lading  nor  out   of   the 
charter-party,  because  it  may  exist  where  there  is  neither  bill  of 
lading  nor  charter-party.     It  arises  out  of  the  contract  of  maritime 
carriage,  by  the  shipment  of  goods  on  board  a  ship  for  the  purpose 
of  being  carried  from  one  country  to  another,   and  it  exists  the 
moment  the  goods  are  put  on  board  for  such  a  purpose.     It  is  regu- 
lated, and  often  limited,  by  terms  in  the  bill  of  lading  or  by  terms 
in  the  charter-party;    but  unless  such  terms  specifically  do  away 
with  this  authority  of  the  master,  the  authority  of  the  master  exists 
by  virtue  of  the  contract  which  arises  between  the  shipowner  and 
the  cargo-owner  by  the  shipment  of  the  goods.     It  is  not  necessary 
to  decide  whether  this  authority  is  given  to  the  master  by  way  of 
contract  or  bv  means  of  the  law. 

"Then  what  is  the  principle  which  ought  to  govern  this  case? 
The  goods  are  put  on  board  an  Italian  ship,  and  the  person  to 
exercise  authority  is  an  Italian  master.  Is  the  authority  of  the 
Italian  master  to  depend  upon  the  law  of  the  country  of  the  shipper, 
when  that  law  is  contrary  to  the  law  of  his  own  country  ?  Why  should 
it?  Is  the  master  of  a  ship  to  be  taken  to  know  the  law  of  the  country 
of  each  shipper  of  the  goods  which  are  put  on  board  his  ship? 
It  would  be  strange  if  that  were  so.  If  a  merchant  puts  his 
goods  into  the  power  of  an  Italian  master  on  board  an  Italian 
owner's  ship,  what  is  the  meaning  of  the  transaction  but  that  he 
is  to  deal  with  the  goods  as  an  Italian  master  is  to  be  taken  to  deal 
with  goods  on  board  his  ship,  unless  he  is  bound  to  another  mode? 
Upon  principle  it  seems  to  mo  that  he  who  ships  goods  on  board 
a  foreign  ship,  ships  them  to  be  dealt  with  by  the  master  of  that 
ship  according  to  the  law  of  the  country  of  that  ship,  unless  there 
is  a  stipulation  to  the  contrary.     Therefore,  when  these  goods  were 


331 


332  MODE  OF  COMPUTING  THE  fCHAP.  VII. 

shipped  on  board  the  Italiau  ship,  it  seems  to  me  that  by  the  eon- 
tract  of  the  parties  arising-  out  of  that  shipment  it  must  be  taken 
that  the  goods  were  to  be  dealt  with  under  circumstances  which 
might  arise,  and  which  are  generally  considered  likely  to  arise  by 
all  maritime  countries,  in  the  way  in  which  that  master  would  deal 
with  the  goods  according  to  the  law  of  Italy,  unless  there  Avas  some 
stipulation  to  the  contrary.  Now  that  is  how  it  stands  on  principle. 
How  are  the  authorities?  The  case  of  Lloyd  v.  Guibert  (n)  does  not 
seem  to  me  to  govern  this  case  absolutely,  because  the  question  there 
Avas  Avhether  or  not  a  certain  stipulation  was  implied  in  a  contract. 
The  contract  was  a  contract  of  affreightment,  and  the  question  Avas 
Avhether  there  Avas  to  be  implied  into  that  contract  a  stipulation 
that  if  certain  circumstances  arose,  and  the  master  deliA'ered  up  his 
ship  and  freight,  the  shipoAAuier  should  not  be  made  liable  beyond 
the  amoruit  specified.  The  OAvner  of  the  ship  could  only  be  relieved 
if  there  Avas  such  a  stipulation  in  the  contract  of  affreightment. 
There  would  have  been  no  such  stipulation  if  it  Avas  to  be  judged 
according  to  the  laAv  of  the  former,  that  is,  the  law  of  the  English 
court.  But  there  Avould  be  such  a  stipulation  if  the  contract  of 
affreightment  Avas  to  be  construed  according  to  the  laAV  of  the  ship. 
It  was  there  held  that  inasmuch  as  the  contract  of  affreightment 
Avas  made  Avith  the  master  or  oAvner  of  a  foreign  ship  abroad,  the 
contract  was  the  contract  of  the  country  of  the  ship ;  in  other  Avords, 
that  it  Avas  governed  by  the  law  of  the  '  flag '  of  the  ship ;  and 
inasmuch  as,  in  the  country  of  that  flag,  such  a  contract  of  affreight- 
ment Avould  have  had  such  a  stipulation  in  it,  then  the  English 
court  Avould  hold  that  it  had  this  stipulation  in  it.  That  is  not 
this  case,  because  the  matter  here  is  not  the  question  of  the  construc- 
tion of  a  contract,  but  of  Avhat  authority  arises  out  of  the  fact  of 
a  contract  having  been  entered  into.  Still,  if  the  contract  was  held 
there  to  be  a  foreign  contract  because  it  was  made  A\-ith  regard  to 
the  shipment  of  goods  on  board  a  foreign  ship,  the  principle  governs 
this  case,  and  Avould  authorize  our  saying  that  the  authority  AA'hich 
arises  out  of  the  contract  of  shipment  is  the  authority  Avhich  the 
laAv  of  the  country  of  the  ship  Avould  give  to  the  master;  and  in 
accordance  Avith  that  principle  I  think  this  case  ought  to  be  decided. 
The  learned  judge  of  the  Admiralty  Court  considered  that  this  case 
was  governed  by  The  Hamburg  (o),  but  with  great  deference  I  do 
not  think  that  that  case  ought  to  govern  the  present  one  at  all. 
There  Dr.  Lushington  treated  the  ship  as  an  English  ship,  and  said  • 
that  ho  was  administering  the  maritime  law  of  England.     It  Avas 

(«)  (1865),  L.  E.  1  Q.  B.  115.  (o)  (1864),  Br.  &  Lush.  253. 


( 


SECT.  LXVI.  ]  AMOUNT  TO  BE  MADE  GOOD.  333 


J 


urged  upon  him  that  he  oug-ht  to  administer  some  other  maritime 
law,  but  his  answer  was,  '  I  do  not  judge  what  it  should  be,  if  there 
had  been  any  evidence  before  me  that  the  maritime  law  of  some  other 
country  was  different  from  the  law  of  England,  but  no  such  evidence 
has  been  given  before  me  in  this  case.'  This  point,  therefore,  did 
not  arise  there,  and  neither  Dr.  Lushington,  nor  the  Privy  Council 
on  appeal,  decided,  if  the  law  of  the  countries  had  been  different 
in  the  case  of  The  Hamburg,  which  law  would  have  been  adminis- 
tered. I  cannot,  therefore,  think  that  the  case  of  The  Hamburg  is 
in  conflict  with  the  decision  to  which  I  have  come  in  the  present 
case,  nor  in  conflict  with  the  case  of  Lloyd  v.  Guibert.  Therefore, 
acting  upon  the  principle  of  Lloyd  v.  Guibert,  and  upon  the  prin- 
ciple which  arises  from  the  mercantile  transaction  itself,  it  seems 
to  me  that  whoever  puts  his  goods  on  board  a  foreign  ship  puts 
them  on  board  subject  to  be  dealt  with  by  the  master  according  to 
the  law  of  the  country  to  which  the  ship  belongs,  unless  that  autho- 
rity is  limited  by  express  stipulation  between  the  parties  at  the 
time  of  the  shipment. 

"  There  was  another  and  a  minor  point  taken,  which  was  that, 
if  that  be  the  law,  yet  it  was  not  the  law  to  be  administered  in  this 
case,  because  the  contract  of  affreightment  here  was  actually  made  in 
England.  But  that  makes  no  difference  in  my  view  of  the  case;  the 
right  arises  out  of  the  contract  which  is  instituted  by  the  shipment, 
and  which  is  not  controlled  in  this  respect  by  any  stipulation  in 
the  bill  of  lading  or  in  the  charter-party.  I  am,  therefore,  of  opinion 
that  the  demurrer  in  this  case  ought  not  to  have  been  allowed,  and 
that  the  rights  of  the  parties  ought  to  be  decided  according  to  the 
law  of  the  flag  "  (p). 

Cotton,  L.  J.,  concurred.  "The  point,"  said  his  lordship.  Cotton,  L.  J. 
"  turns  not  on  the  express  terms  of  any  contract,  but,  in  my  opinion, 
on  an  implied  authority  arising  out  of  the  contract  between  the 
owners  of  the  cargo  and  the  owners  of  the  ship  when  the  goods 
Avere  put  on  board  for  the  purpose  of  being  carried;  and,  like  all 
other  implied  terms,  it  must  be  governed  by  the  law  applicable  t(j 
the  country  in  which  it  is  implied.  .  .  .  We  are  here  not  con- 
sidering what  is  the  proper  remedy,  but  Avhether  the  bottomry  bond  is 
valid  or  not"  (q). 

It  must  now,    then,   be  taken    as    settled    that    all 

ip)  (1882),  7  P.  D.  137,  at  p.  14o.       judgment  of  Sir  James  Hannen  in 
('/)  S.  C,  at  p.  148.     See  also  the       The  Atiynst,  [1891]  P.  328. 


'^^^  MODE  OF  COMPUTING  THE  [CHAP.  VII. 

questions  affecting  the  validity  of  a  bottomry  bond  on 
cargo  must  be  determined  with  reference  to  the  law  of 
the  country  where  the  ship  is  owned.  Were  it  not 
that,  from  the  causes  already  pointed  out,  this  species 
of  security  is  rapidly  falling  into  disuse,  it  might  be 
necessary  to  say  much  more  concerning  bottomry  in 
connection  with  the  subject  of  general  average.  As  it 
is,  1  think  I  may  content  myself  with  referring  my 
readers  to  the  many  works  on  the  special  subject  of 
bottomry,  and  particularly  to  the  very  learned  work  of 
Dr.  Franck,  De  Bodmerid,  in  which  are  set  forth,  in  the 
original,  and  with  a  translation  into  Latin,  the  laws  of  the 
jirincipal  states  of  Europe  and  America  on  this  subject (/•). 
Practicall}',  at  the  present  day,  all  that  a  shipowner, 
merchant,  or  underwriter  needs  to  know  concerning 
bottomry,  or  these  forced  sales  of  cargo,  for  the  most 
part,  is,  that  they  are  very  serious  evils  which,  at  least  if 
he  ships  in  British  bottoms,  it  is  almost  always  in  his 
power  to  avoid.  The  master  of  such  a  vessel  cannot 
bottomry  his  cargo,  and  probably  cannot  sell  it  to  raise 
money,  without  giving  timely  notice  both  to  the  ship- 
owner and  to  the  owner  of  cargo  ;  and  it  now  rarely 
if  ever  happens  that  there  is  not  time  to  send  out  the 
requisite  funds,  accompanied,  in  case  of  suspicion,  with 
some  trustworthy  j^erson  to  superintend  the  disbursing 
of  them.  The  expense  of  doing  this,  including  a  rate  of 
interest  just  sufficient  to  jDlace  all  parties  in  a  position  of 
ultimate  equality,  so  that  no  one  should  either  wish,  or 
shun,  to  advance  more  than  his  share,  should  be  charged 
as  a  pendant  to  the  capital  expenditure  itself,  so  as  to 
bring  about  the  result  so  clearly  described  by  Arnould 
in  the  passage  above  cited  (s). 

(r)  De  Bodmerid:    Franck.     Lon-  («)  Ante,  p.  326,  n.  (/). 

don,  W.  Maxwell,  1842. 


i 


SECT.  LXVII.J  AMOUNT  TO  BE  MADE  GOOD. 


335 


Part  II. — Sacrifices. 

§  67.  (a)  Sacrifices  of  cargo  may  be  treated  under 
the  single  head  of  jettison ;  since,  so  far  as  concerns 
the  amount  to  be  replaced,  every  kind  of  sacrifice  of 
cargo  must  be  treated  on  the  same  basis  as  a  jettison  : 
if  the  cargo  is  destroyed  for  the  common  good,  the 
amount  to  be  replaced  is  the  same  ;  if  it  is  only  damaged, 
the  sum  allowable  is  the  difference  between  the  actual 
proceeds  and  the  amount  allowable  in  the  case  of 
jettison  {t)\  so  that,  in  dealing  with  the  case  of  jettison, 
we  shall  have  disposed  of  all  sacrifices  of  cargo.  There 
will  remain  ordy,  for  the  second  section  of  this  chapter, 
sacrifices  of  ship's  materials. 


carjj'o. 


SECTION  I.— JETTISON  OF  CARGO. 

The  principle  which  regulates  the  amount  to  be  made  General  pria- 

cIdIg   for 

good  in  case  of  jettison  is  this:  The  owner  of  the  goods  sacrifices  of 
jettisoned  is  to  be  so  compensated  that  he  shall  be  in  the 
same  position,  at  the  time  and  jDlace  of  adjustment,  as  if, 
not  his  goods,  but  those  of  some  other  person,  had  been 
thus  sacrificed  [u). 

The  time  and  place  of  adjustment,  as  we  have  seen, 
is  the  termination  of  the   common  adventure;  that  is. 


[t)  In  practice  tlie  amount  allowed 
to  an  owner  of  cargo  damaged  by 
a  general  average  sacrifice  is  fre- 
quentlj',  where  the  adventure  is 
completed,  the  difference  between  the 
gross  sound  value  of  the  goods  and 
their  gross  value  in  their  damaged 
condition,  plus  any  extra  charges 
incurred  in  consequence  of  the  goods 
having  arrived  damaged.  Should 
the  cargo-owner  have  been  saved 
any  charges,  owing  to  the  goods 
having  arrived  damaged,  the  amount 
thus  saved  must  be  deducted  from 
the  allowance  in  general  average. 


(«)  To  give  full  effect  to  this  jmn- 
ciple,  interest  ought  to  be  allowed  to 
the  owner  of  cargo  sacrificed  from 
the  time  of  the  termination  of  the 
adventure  until  he  actually  received 
the  amount  made  good  to  him. 
Otherwise  he  is  not  put  on  an  equa- 
lity with  the  shipowner,  who  has  had 
the  use  of  his  ship  during  this  time, 
and  the  other  owners  of  cargo,  who 
received  their  goods  when  the  vessel 
arrived.  In  practice,  however,  such 
interest  is  never  allowed  in  this 
country. 


336 


MODE  OF  COMPUTING  THK 


fCHAP.  VII. 


Rule  for  ob- 
taining 
equality  of 
contribution. 


Rule  in  case 
of  arrival. 


generally  speaking,  the  arrival  of  the  ship  and  cargo  at 
the  j^lace  of  destination ;  but,  sometimes,  the  time  and 
place  of  wreck  (x). 

It  may  be  pointed  out  once  for  all,  as  applicable  not 
only  to  jettison  but  to  all  kinds  of  general  average,  that 
the  equality  of  contribution,  as  between  those  whose 
property  has  been  sacrificed  and  those  whose  property 
has  been  preserved,  is  attained  by  a  simple  contrivance, 
universal  in  the  ^^I'^^i-ctice  of  adjusting  averages.  The 
amount  made  good  in  respect  of  property  sacrificed  is 
brought  in  as  contributing  rateably  with  the  property 
preserved  :  so  that  the  former  pays  the  same  proportion 
of  ""eneral  averao;e  as  the  latter. 

Whenever,  then,  after  a  jettison,  the  ship  and 
remaining  cargo  reach  the  port  of  destination,  the 
amount  to  be  replaced  in  general  average  is,  the  net 
market  value  of  the  goods  thrown  overboard  (,y) :  that  is 
to  say,  the  sum  which  those  goods  would  have  fetched 
had  they  been  sold  immediately  upon  delivery  ;  deduct- 
ing therefrom  those  expenses  which  must  have  been 
incurred  by  the  proprietor,  and  which  he  escapes  by 
reason  of  the  non-delivery  of  his  goods  {//I/)-  Hence 
the  freight,  if  payable  at  the  port  of  destination,  or  if 
the  payment  is  made  conditional  upon  the  delivery  of 


{x)  See  ante,  Ch,  YI. 

(?/)  It  is,  however,  said,  that  if 
jewels,  or  other  valuables,  are  de- 
scribed in  the  bill  of  lading  as  arti- 
cles of  inferior  value,  they  are  to  be 
contributed  for  as  of  such  inferior 
value.  (See  Benecke,  294  ;  Arnould, 
2nd  edit.,  p.  947;  8th  edit.,  §  9S1 ; 
Code  de  Com.  Art.  418;  cf.  Lebeau 
V.  Gen.  Steam  Nav.  Co.  (1872),  L.  E. 
8  C.  P.  88.)  So  also,  according  to 
the  Laws  of  Wisby  and  some  of  the 
older  writers,  if  valuables  are  packed 
in  a  box  without  any  intimation  to 
the  master  of  their  value,  they  shall 


be  contributed  for  only  upon  the 
value  of  the  box,  or  of  the  goods  the 
master  might  reasonably  suppose  it 
to  contain.  (See  Arnould,  ubi  supra.) 
Phillips,  however,  considers  that  if 
the  omission  to  give  notice  of  the 
contents  of  the  box  was  not  due  to 
the  fault  or  negligence  of  the  shipper, 
the  contribution  should  be  for  their 
value.     (Phillips,  §  1372.) 

(yy)  ^"tien  sacrificed  goods  are 
replaced  at  the  port  of  loading,  the 
amount  allowed  in  practice  is  the 
actual  cost  of  replacing  them. 


SECT.  LXVII.]  AMOUNT  TO  BE  MADE  GOOD. 


337 


'  afloat ' '  or 
"  to  ari-ive  " 
disregarded. 


the  goods,  must  be  deducted :  so  must  the  expenses 
of  landing  and  sale :  but  not  the  cost  of  marine 
insurance,  since  this,  if  incurred  at  all,  must  be  incurred 
whether  the  goods  are  jettisoned  or  not  (s). 

The  market  value  at  the  date  of  discharge  is  in  all  Sales 
cases  the  basis  of  compensation.  If  the  cargo  has  been 
sold  afloat,  or  "■  to  arrive,"  the  loss  which  the  merchant 
actually  sustains  by  the  jettison  is,  the  price  at  which  it 
was  thus  sold :  but,  as  such  a  speculative  sale  beforehand 
is  a  thing  with  which  the  other  owners  of  property  have 
no  concern,  such  sales  "  to  arrive  "  are  disregarded  ;  and, 
whether  the  goods  have  been  sold  afloat  at  a  higher  or 
a  lower  price  than  the  eventual  market  value,  it  is  the 
latter  which  is  made  tlie  basis,  both  for  compensation  . 
and  for  contribution  (a). 

The  owner  of  the  ship,  who  loses  his  freight  on  the  Freight  on 
goods  jettisoned,  must  be  compensated  in  general  average 
for  this  freight,   as  the  owner  of  the  goods  is  for  his 
merchandise. 

If  the  goods  jettisoned  had  previously  been  damaged.  Rule  when 
or  if,  though  not  damaged  at  the  time,  it  can  be  proved  goodrare 
that,  had  they  remained  on  shipboard  with  the  rest  of   ^^^^^  ' 
the  cargo,  they  must  inevitably  have  suffered  damage 
before  reaching  their  destination,  the  amount  to  be  made 
good  is  to  be  reduced  to  their  value  in   the  damaged 
state  (b). 

(2)  The  merchant's  commission  is 
not  deducted,  for  ant  ther  reason. 
"  That  is  not  payable  when  the  con- 
signee is  the  owner  of  the  goods,  and 
is  usually  charged  on  jettisoned  goods 
by  the  consignee  when  he  is  not  the 
owner,  and  therefore  is  not  deducted 
in  estimating  the  loss  to  be  allowed 
in  general  average."  (Baily,  Gen. 
Av.  135,  n.) 

(a)  This,  which  has  for  many  years 


been  the  practice  amongst  adjusters, 
is  confirmed  by  the  Court  of  Appeal 
in  Riidocanachi  v.  Mllburn  (18  Q.  B. 
D.  67,  at  p.  7<i).  This  was  an  action 
against  the  shipowner  for  non-deli- 
very, but  the  principles  laid  down  by 
Lord  Esher,  M.  E.,  are  equally  appli- 
cable to  the  case  of  general  average. 
(See  per  Gorell  Barnes,  J.,  in  The, 
Leitrim,  [1902]  P.  256,  267.) 

{h)    Ante,    pp.    42,    43.      On    the 

Z 


338  MODE  OF  COMPUTING  THE  [CHAP.  VII. 

In  carrying  out  tliis  piinciple,  it  is  to  be  borne  in 
mind  that  the  owner  of  goods  jettisoned  has  a  iwimd 
facie  claim  to  their  value  in  a  sound  state ;  consequently, 
the  burden  of  proof  rests  with  those  who  wish  to  admit 
a  lower  value ;  and  the  allowance  must  not  be  reduced 
except  upon  clear  proof  that  the  damage  either  actually 
existed,  or,  if  in  the  future,  that  it  was,  not  merely 
probable,  but  inevitable.  In  practice,  therefore,  when 
the  goods  were  sound  at  the  time  of  jettison,  and  when 
the  cargo  arrives  partly  sound  and  partly  damaged,  so 
that  it  is  doubtful  whether  the  goods  jettisoned  would 
have  been  damaged  or  not,  they  are  treated  as  if 
sound  (c). 
Effect  of  sub-  If,  again,  after  a  jettison,  there  is  some  accident, 

dent.  the  effect  of  which  is  to  throw  upon  the  cargo  an  ex- 

pense, which  would  in  like  manner  have  fallen  upon  the 
goods  jettisoned,  had  they  remained  on  board,  there 
must  be  a  deduction  from  the  allowance  for  jettison, 
corresponding  to  the  expense  which  it  has  escaped  (r/). 
This  rule,  the  equity  of  which  is  self-evident,  is  in 
practice  always  observed  when  the  expense  is  consider- 
able. It  is  sometimes  neglected  or  omitted  when  the 
expense  in  question  is  small.  For  example,  when  a 
jettison  is  followed  by  the  ship's  putting  into  a  port  of 
refuge,  where  the  cargo  is  discharged  to  repair  the  ship, 
most  adjusters,  although  they  would  make  the  jettisoned 
.  cargo  contribute  towards  the  expense  of  discharging,  as 
well  as  towards  the  remainder  of  the  general  average, 

same  principle, .  if  the   goods  jetti-  {d)  On  tliis  principle,  if  salvage 

soned  were   subject   to    leakage    or  charges  are  subsequently  incurred,  a 

breakage,    allowance    ought    to    be  deduction    is    frequently    made     in 

made  for  the    ordinary   leakage   or  practice  from  the  amount  to  be  made 

breakage  in  estimating  their  value.  good  for  a  general  average  sacrifice, 

(2  Phillips,  §  1366;  2  Arnould,  8th  of  the  estimated    proportion   of  the 

edit.,  §  9S1.)  salvage  which  the  interest  sacrificed 

(c)  Baily,  Gen.  Av.  p.  137,  n.  would  have  been  liable  to  pay. 


SECT.  LXVII.]  AMOUNT  TO  BE  MADE  GOOD. 


339 


make  no  deduction  from  the  allowance  for  jettison  on 
account  of  the  warehouse  rent  at  the  port  of  refuge, 
which  those  goods,  if  not  jettisoned,  must  have  borne. 
This  is  plainly  wrong  in  principle  :  the  effect  being  that, 
to  this  extent,  the  goods  jettisoned  are  better  off  than 
the  remainder. 

Such  are  the  rules  for  computing  a  jettison,  when 
the  cargo  reaches  its  port  of  destination.  When  the 
voyage  is  terminated  by  a  wreck  of  the  ship,  and  when, 
in  consequence,  the  average  is  properly  adjusted  at  some 
place  other  than  that  of  destination,  the  allowance  for 
jettison  must  be  regulated  by  the  value  of  the  cargo  at 
that  place.  That  this  is  the  rule  must  now,  since  the 
decision  in  Fletcher  v.  Alexander,  be  taken  to  be  settled 
law  [e).  The  extent  and  operation  of  this  rule  has  been 
sufficiently  explained  in  the  preceding  chapter. 

When  a  jettison  is  followed  by  a  total  loss  of  ship 
and  cargo,  there  is  of  course  no  allowance  in  general 
average.  When  it  is  followed  by  a  wreck  with  partial 
salvage,  the  sum  allowable  for  jettison  is,  so  much  as 
presumably  would  have  been  saved  had  the  jettisoned 
goods  been  left  on  board  and  shared  the  fortunes  of  the 
remainder  ( /). 

[Where  goods  which  have  been  jettisoned  have 
been  recovered,  the  amount  of  the  contribution  is  the 
damage  done  to  them,  together  with  the  expense  of 
recovering  them ;  and  if  they  have  already  been  con- 
tributed for  in  full,  the  balance  must  be  refunded  {g).~] 

The  same  principles  apply  to  the  allowance  for  loss  Loss  of 
of  freight  consequent  on  a  jettison.     If,  after  the  jettison,  jcttSon.  ^ 
the  ship  is  wrecked  or  condemned  at  a  port  of  refuge, 

(p)  (1868),  L.  E.  3  C.  P.  375;  ante,  {g)  Arnould,  2ncl  edit.  p.  947 ;  8tli 

P-  293.  edit.  §  981. 

(/)  Ajite,  pp.  42,  43. 

z2 


340 


MODE  OF  COMPUTING  THE  [cHAP.  VII. 


Frei<rht  taken 
to  fill  lip. 


When  the 
freight  is 
prepaid. 


When  the 
ship  is  char- 
tered. 


and  the  cargo  is  forwarded  to  its  destination  in  another 
vessel,  the  sum  allowable  for  freight  of  jettison  is,  the 
freight  mider  the  original  bill  of  lading,  minus  the  for- 
warding freight  which  Avoiild  have  been  incurred.  If 
the  hire  of  the  forwarding  vessel  equals  or  exceeds  the 
original  freight,  nothing  is  allowable  to  the  shipowner 
in  general  average ;  since  in  such  a  case  the  jettison  has 
occasioned  no  loss  of  freight. 

If,  after  a  jettison,  the  ship  puts  into  a  port  of 
refuge,  and  there  takes  In  fresh  cargo  In  the  space  left 
vacant  through  the  jettison,  the  new  freight  thus  earned 
must  go  in  diminution  of  the  shipowner's  claim  for  loss 
of  freight.  It  would  be  otherwise  if  the  ship  were  not 
full  at  first,  so  that  the  new  cargo  might  equally  have 
been  received  on  board  had  there  been  no  jettison  [li). 

If  the  freight  has  been  absolutely  prepaid,  the  sum 
to  be  allowed  for  the  jettison  is  the  same  on  the  whole : 
but,  instead  of  being  divided  between  the  merchant  and 
the  shipowner,  the  merchant  receives  all ;  there  being  no 
deduction  in  respect  of  freight  from  the  value  of  the 
goods,  and  no  allowance  to  the  shij^owner,  who  in  that 
case  has  suffered  no  loss  of  freight  by  reason  of  the 
jettison. 

When  a  ship  is  chartered  for  a  lump  sum,  irrespec- 
tive of  the  quantity  of  cargo  she  may  carry,  the  courts 
will  generally,  if  not  always,  consider  this  payment,  not 
as  freight  properly  speaking,  but  as  a  sum  paid  for  the 
hire  of  the  ship  ;  so  that,  if  the  ship  performs  her  voyage, 
and  arrives,  whether  fully  laden  or  partially  empty,  the 
entire  lump  sum  stipulated  is  payable  («).  Under  such 
a  charter,  therefore,  no  deduction  in  respect  of  freight  is 
to  be  made  from  the  cargo  owner's  claim  for  jettison. 


i\ 


[h]  Baily,  Gen,  Av.  p.  134. 


(0    The    Norway    (1865),    Br.    & 
Lush.  404,  408. 


SECT.  LXVII.J  AMOUNT  TO  BE  MADE  GOOD. 


341 


A   complication    arises,  when    a   ship   is    chartered  when  char- 
ters 1  ship  is 

at  a  certain  rate  per  ton  or  per  pound  weight  of  cargo  sub-let. 
delivered,  and  then,  instead  of  being  laden  by  the 
charterer  with  goods  of  his  own,  is  sub-let  to  shijopers 
under  bills  of  lading  at  lower  rates.  A  jettison  in  this 
case  causes  a  loss  to  the  shipowner  of  the  higher  rate  of 
freight :  while  the  only  deduction  which  the  owners  of 
the  goods  jettisoned  can  submit  to,  is  the  lower  rate 
named  in  the  bill  of  lading,  since  that  is  all  which  they 
escape  through  the  jettison.  Thus,  if  compensation  is 
to  be  made  to  both  these  parties,  the  total  sum  allowable 
in  general  average  would  be  more  than  the  entire  value 
of  the  goods  jettisoned. 

The  practice  in  this  case  is,  to  limit  the  allowance 
in  general  average  to  the  actual  value  of  the  goods :  and, 
as  the  owners  of  the  goods  are  entitled  to  receive  tlie 
value  of  them,  minus  the  bill  of  lading  freight  oulv,  it  is 
only  this  lower  rate  of  freight  which  is  allowed  in 
general  average. 

When  a  ship  is  sub-let  in  this  manner,  the  charter 
is  a  matter  with  wliich  the  owners  of  the  cargo  have  no 
concern  :  their  contract  is  the  bill  of  lading  ;  their  rights 
and  liabilities,  in  respect  of  general  average,  should  be 
the  same  as  if  no  charter  existed  (^k).  Such  a  charter 
is,  therefore,  for  all  j)^ii'poses  connected  with  general 
average,  as  completely  disregarded,  and  properly  so,  as 
a  sale  of  cargo  ''  to  arrive." 

SECTION 2.— SACRIFICES  OF  SHIP'S  MATERIALS. 

(b)  When   a  ship's  masts  have  been   cut  away,  or  Measure  of 
other  articles  constituting  a  part  of  the  ship  or  her  a23parel    ^"'^°^** 
have  been  sacrificed,  and  when  the  ship   is  afterwards 

(/c)  Baily,  Gen.  Av.  p.  132.     See  also  per  Gorell  Barnes,  J.,  in  TheLeUrim, 
[1902]  P.  256,  267. 


342  MODE  OF  COMPUTING  THE  [cHAP.  VII. 

repaired,  the  sum  allowable  as  compensation  for  this 
damage  is,  the  cost  of  repairing  it,  with  a  deduction  for 
the  advantage  Avhich  the  owner  derives  from  having 
new  work  in  place  of  old. 

The  cost  of  repairing  such  damage  must  be  taken 
to  be  the  cost  of  repairing  it  at  the  time  and  place  where 
it  ought  to  be  repaired.  Should  it  be  necessary  for  the 
ship,  after  the  sacrifice,  to  go  into  some  port  of  refuge, 
and  there  repair  this  damage,  the  cost  of  repairing  at 
that  place,  however  expensive  it  may  be,  is  the  sum 
allowable.  Otherwise,  the  cost  of  repairing  at  the  place 
of  destination,  and  at  the  time  of  the  ship's  arrival,  is  to 
be  taken,  provided  the  repair  either  is  or  ought  to  be 
effected  then  and  there.  It  may  happen,  however,  that 
from  motives  of  economy,  the  master  delays  repairing 
until  he  shall  reach  some  cheaper  place :  in  which  case, 
under  ordinary  circumstances,  the  sum  allowable  must 
be  reduced  to  the  actual  cost  at  the  place  he  thus  selects 
for  the  purpose.  These  rules  are  founded  on  the  prin- 
ciple, that  the  owner  is  entitled  to  no  more  than  com- 
pensation for  his  actual  loss,  and  that  he  is  bound  to 
do  what  is  reasonable  to  make  that  loss  as  light  as 
may  be  (/). 
Deduction  of  The  dcduction  for  improvement  is,  by  an  ancient 

one-third.  _  .   . 

and  wide-spread  custom,  prevailing  amongst  almost  all 
maritime  communities,  fixed  at  one-third  of  the  cost  of 
repairs,  wath  certain  equally  well-defined  excejjtions. 
Anchors  are  allowed  in  full :  chain  cables  are  subject  to 
one-sixth  only :  and  there  is  no  deduction  for  provisions 
or  such  stores  as  are  of  a  nature  to  suffer  no  diminution 
of  value  from  mere  la23se  of  time  [m). 

(/)  Baily,  Gen.  Av.  p.  130.  mucli   of  the  cost  as  represents  the 

(m)  The  deduction  for  new  metal      weight   of    metal  stripped  off,    and 

sheathing  is  computed  by  allowing  so      charging  the  excess  to  the  shipowner. 


SECT.  LXVII.]  AMOUNT  TO  BE  MADE  GOOD.  343 

Materials  which  are  perfectly  new  when  sacrificed, 
such  as  coils  of  rope  which  are  taken  from  a  store-room, 
or  spare  sails  which  have  never  been  bent,  are  allowed 
without  deduction. 

This  rule  of  deducting  one-third,  without  discrimi-  Objections  to 

this  rule. 

natmg  between  those  parts  of  a  ship  where  the  adding  of 
a  new  patch  is  no  improvement  whatever,  and  those 
which,  like  the  sails  and  ropes,  require  frequent  renewal; 
and,  again,  drawing  no  distinction  between  articles 
nearly  new  and  articles  nearly  worn  out ;  is  evidently  a 
very  rude  contrivance,  and  there  is  nothing  to  be  said  in 
its  favour,  except  that  it  saves  trouble  and  disputes. 

A  gross  example  of  its  injustice  and  even  absurdity 
is  furnished,  when  a  ship,  after  her  masts  have  been  cut 
away,  is  on  that  account  obliged  to  put  into  a  port 
of  refuge,  where,  owing  to  high  prices  or  want  of 
appliances  («),  the  cost  of  new  masts  is  greatly  in  excess 
of  their  cost  at  the  home  port.  This  is  an  every-dav 
case  :  and  it  by  no  means  unusually  happens  that  the  cost 
of  repairing  at  such  a  place  is  double  or  treble  the  cost  in 
England,  so  that  the  shipowner  may  be  called  on  to  pay, 
for  the  supposed  advantage  of  having  a  new  mast  in  place 
of  that  which  he  had  before,  as  much  as  the  entire  cost  of 
a  new  mast. 

Nor  is  this  all.  It  frequently  occurs,  in  such  cases, 
that  the  cost  of  repairing  is  enhanced  by  the  addition  of 
bottomry  premiums  or  conniiissions  for  advancing  money. 
Our  practice  goes  so  far  as  to  deduct  one-third  from  these 
incidental  expenses ;  though  nothing  is  more  evident 
than  that  a  mast  is  not  made  more  valuable  by  the  cir- 

(n)  A  case  came  under  my  notice,  expense  of  an  expedition  into  the 
where  a  large  part  of  the  cost  of  a  woods,  to  select  and  cut  down  a  suit- 
mast  at  such  a  port  consisted  of  the      able  tree. 


344 


MODE  OF  COMPUTING  THE 


[chap.  VII. 


No  thirds  ou 
first  voyage. 


cumstance  that  a  bottomry  premium  has  been  paid  on 
the  cost  of  supplying  it  (o). 

The  deduction  of  one-third  is  made  from  labour  as 
well  as  materials.  No  deduction  is  made  from  temporary 
repairs  ;  nor  from  such  repairs  as,  being  unavoidably  of 
such  inferior  materials  or  bad  workmanship  as  to  be 
unfit  for  the  ship,  must  be  replaced  at  the  end  of  the 
voyage,  and  consequently  add  nothing  to  the  ship's 
permanent  value. 

To  the  rule  of  deducting  one-third  there  is  in  this 
country  (p)  an   important  exception.     No   deduction   is 
made  from  the  repair  of  a  ship   which  is  on   her  first 
voyage.     The  first  vo3'age  means,  her  first  entire  trading 
adventure.     A  mere  passage,  in  ballast,  or  with  cargo  to 
serve  as  ballast,  from  the  place  of  building  to  the  place 
where  she  enters  into  her  owner's  service  and  commences 
her  mercantile  existence,  is  not  accounted   either  as  a 
voyage  or  as  part  of  a  voyage.     A  ship  may  be  built  in 
Canada,  and  sent  for  sale  to  England,  with  a  cargo  of 
timber  ;  and  she  is  then  entitled  to  commence  her  first 
voyage,  from  London  or  Liverpool,  as  a  new  ship.     It 
has  been  decided  in  the  courts  that  such  first  voyage  is 
generally  to  be  taken  as  a  voyage  out  and  home  :  that  is 
to  say,  in  the  case  of  a  ship  intended  to  trade  to  foreign 
parts,  taking  cargoes  out  and  bringing  cargoes  home,  the 
passages  out  and  home  constitute  one  entire  voyage  (q). 
It  is  not  necessary  that  she  should  go  out  and  home 
direct,  nor  that  her  engagements  for  the  entire  voyage 
should   be   predetermined    at    the   time   of   sailing   out. 


(o)  No  thirds  are  deducted  from 
such  incidental  expenses  as  cartages, 
or  the  cost  of  convej'ing  materials  for 
repair  from  the  place  where  they  are 
bought  to  the  ship. 


{]))  It  is  not  so  in  the  United  States. 
Thirds  are  taken  off  there,  though  the 
ship  be  on  her  first  voyage.  (2  Par- 
sons, Ins.  286;  Phillips,  Ins.  §  1431.) 

(q)  Fenwich  v.  Robinson  (1828),  3 
C.  &  P.  323. 


SECT.  LXVII.]  AMOUNT  TO  BE  MADE  GOOD.  '^45 

AVhere  a  ship  was  chartered  for  a  voyage  from  London 
to  Port  Jackson  and  Van  Dieman'a  Land,  with  convicts  ; 
and,  after  completing  her  charter,  being  unable  to  pro- 
cure a  homeward  freight  from  Van  Dieman's  Land,  she 
.  went   in   ballast    to    Madras,    and   took   in    freight    for 

:  England,  which  was  proved   to  be  a  customary  course 

for  ships  so  chartered ;  she  was  held  to  be  on  her  first 
voyage  until  her  arrival  in  England  (r). 

If  there  is  a  new  mast  in  an  old  ship,  or  if  any  other  Replacing 

^  _  "  new  parts  of 

I  portion  of  the  ship  has  been  renewed  inmiediately  before  an  old  ship. 

sailing  on  the  voyage,  and  if  this  new  mast  or  other  new 
work  is  sacrificed,  should  the  one-third  be  deducted  ? 
This  is  a  disputed  point.  As  a  matter  of  equity,  it  would 
seem  that  no  deduction  should  be  made,  at  any  rate  when 
the  ship  puts  back  to  her  loading  j)ort,  since  in  this  case 
the  owner  derives  no  advantage  whatever  from  the 
renewal  of  work  which  was  new  before.  The  present 
practice  is,  to  make  no  deduction  in  the  case  of  metal 
sheathing,  when  the  ship  returns  to  her  starting  point, 
having  been  newly  sheathed  before  sailing ;  but  in  the 
case  of  all  repairs  except  sheathing,  the  more  general, 
though  I  believe  not  the  universal,  practice  is  to  deduct 
one-third.  This  distinction  seems  plainly  untenable ; 
and  it  would  probably  be  better  that  all  replacing  of  work 
actually  new  at  the  commencement  of  the  voyage  should, 
upon  clear  proof  of  the  fact,  be  allowed  without  the 
deduction  (s). 

(r)  Pirie  v.  Steele  (1837),    2   M.  &  cision  in  Poi ngdestre  v.   Boy.    Exch. 

Rob.  49  ;  8  C.  &  P.  200.  Co.  (1826),  Ey.  &  M.  378.     In  that 

(s)  Arnould  (2nd  edit.  p.  1000;  case,  however,  the  work  replaced  was 
8th  edit.  §  1028)  says  that  a  case  of  partly  new  and  partly  old,  and  the 
this  kind  can  rarely,  if  ever,  occur ;  ship  did  not  return  to  her  starting 
unfortunately,  it  does  in  fact  arise  point,  but  had  made  a  voyage ;  be- 
very  often.  It  is  sometimes  argued  sides  which,  that  was  a  question  of 
that  the  point  is  settled  bj'  the  de-  jiarticular  average  under  a  policy  of 


346 


MODE  OF  COMPUTING  THE 


[chap.  VII. 


Rules 
adopted  by 
Adj  usters' 
Assouiatiou. 


With  regard  to  iron  or  steel  ships,  a  deduction  of 
one-third  new  for  old  would  undoubtedly  be  excessive, 
at  any  rate  from  tlie  iron  or  steel  portion  of  the  repairs. 
For  many  years  it  has  been  the  all  but  universal  custom 
to  insert  special  clauses  in  policies  of  insurance  on  such 
ships,  doing  away  to  that  extent,  or  entirely,  with  this 
deduction.  This,  however,  of  course  cannot  affect  the 
general  average,  as  between  the  shipowner  and  owners 
of  cargo.  Hence  there  has  been  this  anomalous  result, 
that  the  underwriters  of  ships  insured  with  these  clauses 
have,  in  the  case  of  general  average  repairs,  been  called 
on  to  pay,  in  addition  to  the  ship's  proportion  in  full, 
the  unrecovered  one-third  of  tlie  cargo's  and  freight's 
j)roportion.  To  remedy  this,  as  well  as  for  the  sake  of 
remedying  an  obvious  flaw  in  the  law  of  general  average, 
the  Adjusters'  Association  appointed  a  special  committee 
to  make  inquiry  into  the  subject  and  report  to  the 
Association,  and  in  accordance  with  their  recommenda- 
tion the  following  rules  were  adopted  in  1887  and  con- 
firmed in  1888:  — 

"Deductions  from  cost  of  rejjairs  to  iron  vessels  in 
adjusting  general  average. 

That  in  adjusting  claims  for  general  average,  repairs  to  iron 
vessels  shall  be  subject  to  the  following  deductions  in  respect  of 
'new  for  old,'  viz.:  — 


From  date  of  original  register. 

Up  to         I       All  repairs  to  be  allowed  in  full,  except  painting  or 
1  ye,ar  old     \   coating  of    bottom,  from  which    one-third    is    to    be 
(^i.)  '  deducted. 


insurance,  and  it  maj^  be  that  ques- 
tions of  general  aveiage  should  be 
determined  on  principles  of  broader 


equity  than  questions  arising  out  of 
a  contract  with  underwriters. 


Between 
1^3  years 

(JB.) 


SECT.  LXVII.]  AMOUNT  TO  BE  MADE  GOOD. 

One-third  to  be  deducted  off  repairs  to  and  renewal 
of  boilers  and  their  mountings,  woodwork  of  hull, 
masts  and  spars,  furniture,  upholstery,  crockery,  metal 
and  glassware,  also  sails,  rigging,  ropes,  sheets,  and 
^  hawsers  (other  than  wire  and  chain),  awnings,  covers 
and  painting. 

One-sixth  to  be  deducted  off  wire  rigging,  ropes, 
and  hawsers,  chain  cables  and  sheets,  donkey  engines,' 
steam  winches,  steam  cranes  and  connections;   other 
^  repairs  in  full. 

j       Deductions  as  above  under  Clause  B.,  except  that 
j  one-sixth   be   deducted   off   ironwork   of   masts   and 


347 


Hetiveeti 

3  <£•  6  years 

{C.) 


lietween 
6  Sf  \Q years    <■ 


After 
10  years 


spars,  and  machinery  other  than  boilers 

Deductions  as  above  under  Clause  C,  except  that 
one-third  be  deducted  off  ironwork  of  masts  and 
spars,  repairs  to  and  renewal  of  all  machinery  and 
all  hawsers,  ropes,  sheete  and  rigging;  one-sixth  to  be 
deducted  off  chains  and  cables. 

One-third  to  be  deducted  off  all  repairs  and  re- 
newals, except  ironwork  of  hull  and  cementing. 
Anchors  to  be  allowed  in  full. 

One-sixth  to  be  deducted  off  chain  cables. 

The  deductions  (except  as  to  provisions  and  stores 
machinery  and  boilers)  to  be  regulated  by  the  age  of 
the  vessel,  and  not  the  age  of  the  particular  part  of 
her  to  which  they  apply.  No  painting  bottom  to  be 
allowed  if  the  bottom  has  not  been  painted  within  six 
months  previous  to  the  date  of  accident.  No  deduc- 
tion to  be  made  in  respect  of  old  material  which  is 
repaired  without  being  replaced  by  new,  and  provi- 
V  sions  and  stores  which  have  not  been  in  use." 

When  the  injury  to  the  ship,  whether  caused  by  the  Rule  when 
sacrifice    alone,    or    by   that    conjointly   with  accidental  ^J^tS '^ °"* 
damage,  is  so  extensive  that  she  is  not  worth  repairing 
and  IS  therefore  sold,  the  allowance  in  general  avera^" 
IS  not,  necessarily,  the  estimated  cost  of  replacino-  the 
articles    sacrificed.       We    are    in    that    case    to    enquire 


Generally 

{F.) 


'US 


MODE  OF  COMPUTING  THE 


[chap.  VII. 


whether  or  no  the  sacrifice  was  that  whicli  caused  the 
loss  of  the  ship.  If  tlie  accidental  damage,  apart  from 
the  sacrifice,  would  have  sufficed  to  condemn  the  ship, 
all  that  can  be  allowed  by  way  of  compensation  for  the 
sacrifice  is,  the  difference  between  the  sum  which  the 
ship  would  have  fetched,  other  things  remaining  the 
same,  had  the  sacrifice  not  been  made,  and  the  sum 
which  she  actually  fetched.  This  difference  is  all  which 
the  shipowner  has  really  lost  by  the  sacrifice.  If,  on  the 
other  hand,  it  is  the  damage  done  by  the  sacrifice  which 
has  turned  the  scale;  that  is  to  say,  if  the  ship  in  spite 
of  all  her  previous  accidental  damage,  would  have  been 
worth  repairing,  and  would  have  been  repaired,  but  for 
her  masts  having  been  cut  away,  or  some  similar  sacrifice 
made  for  the  general  safety ;  then  the  amount  allowable 
in  general  average  for  this  sacrifice  is  the  value  of  the 
ship  [before  the  damage] — with  her  net  freight,  in  case 
this  be  lost  by  the  sale  of  the  ship — 7ninus  the  estimated 
cost  of  re^jairing  the  accidental  damage  [and  the  net 
j)roceeds  of  the  sale]  :  this  difference  being,  in  the  case 
supposed,  the  measure  of  the  shipowner's  actual  loss 
through  the  sacrifice  (zf). 


{t)  Henderson  v.  Shankland,  [1896] 
1  Q.  B.  525  (C.  A.).  In  this  case 
the  Coiirt  of  Appeal  also  held  that  no 
deduction  in  respect  of  thirds  was  to 
he  made  from  the  estimated  cost  of 
the  particular  average  repairs.  This 
part  of  the  j  udgment  is  criticized  by 
Mr.  Carver  (§  422,  n.),  who  points 
out  that  the  endeavour  was  to  ascer- 
tain what  the  ship  was  worth  after 
the  particular  average  damage,  and 
before  the  general  average  sacrifice. 
"For  this  purpose,"  he  says,  "the 
undamaged  value  of  the  ship  was 
taken  as  the  basis  of  the  calculation. 
But  the  particular  average  repairs  if 


done  would  have  added  to  that  ori- 
ginal value.  That  is  the  theory  of 
the  custom  to  deduct  thirds.  Thus 
the  cost  of  the  particular  average 
rei:)aii's  was  not  a  measure  of  the  de- 
preciation from  the  undamaged  value, 
but  a  measure  of  the  dej^reciation 
from  the  repaired  value.  Hence, 
either  the  repaired  value  should  have 
been  taken  as  the  basis  of  the  calcu- 
lation, or  the  deduction  of  thirds 
should  have  been  made  from  the 
estimated  cost  of  the  particular 
average  repairs."  A  simple  illus- 
tration win  show  the  justice  of  this 
criticism.     If  the  undamaged  value 


il 


SECT.  LXVIL]  amount  TO  BE  MADE  GOOD. 


349 


of  the  sliip  was  12,000/'.,  and  the 
estimated  cost  of  the  repairs  is  3,000/., 
the  expenditure  of  that  sum  would, 
it  is  assumed,  enhance  the  value  of 
the  ship  to  the  extent  of  1,000/.  If 
therefore  the  shijj  would  by  spending 
3,000/.  be  made  worth  13,000/.,  her 
value  in  the  damaged  state  is  10,000/. 
The  thirds  have  in  this  calculation 
been  added  to  the  undamaged  value ; 
but  the  result  would,  of  course,  be 
the  same  if  they  had  been  deducted 
from  the  estimated  cost  of  the  re- 
pairs. 

The  main  ground  of  the  decision  in 
Henderson  v.  ShankJand  was,  that 
the  deduction  of  thirds  is  not  made 
in  considering  whether  there  is  a 
constructive  total  loss.     In  cases  of 


constructive  total  loss,  however,  the 
question  is  a  different  one,  viz., 
whether  the  cost  of  repairing  the 
ship  would  exceed  her  value  when 
repaired.  (Marine  Insurance  Act, 
1906,  s.  60,  sub-s.  2  (ii).)  The  un- 
damaged value  is  not  the  basis  of  the 
calculation,  and  there  is,  therefore, 
no  analogy  between  these  cases. 
Another  reason  stated  by  Lord 
Esher,  M.  E.,  for  not  allowing  the 
deduction  was,  that  no  one  got  any 
benefit  from  the  repairs,  as  they  were 
not  executed,  to  which  Mr.  Carver 
replies,  that  the  calculation  to  be 
made  was  simply  of  the  ship's  value 
at  a  particular  time,  not  of  the  gain 
or  loss  to  any  one  by  repairing. 


350 


CHAPTER   VIII. 

COXTRIBUTING  INTERESTS  AND  VALUES. 

SECT.  PAGE 

68.  General  pi-inciple 350 

69.  Value  of  ship 351 

70.  Value  of  cargo    353 

71.  Value  of  freight 354 

72.  When  does  interest  in  freight  cojnmence  ?    362 

73.  Of  speculative  charters 366 

74.  Of  advances  tinder  charter     369 

75.  Deductions  from  freight    372 

76.  Other  contributing  interests 375 


To  complete  that  portion  of  the  subject  which  refers  to 
the  mode  of  adjustment,  nothing  now  remains  but  to 
consider  in  what  manner  the  contribution  is  to  be  levied  : 
that  is  to  say,  what  interests  are  to  contribute,  and  on 
what  values. 

General  prin-  R  68.  The  principles  which  reo:ulate  this  have  for 

ciple.  ^  ^  ^  ^^ 

the  most  part  been  already  dealt  with ;  for  it  may  be 
stated  generally  that  the  basis  for  contribution  for  pro- 
perty which  is  saved  is  the  same  as  the  basis  of  allowance 
for  property  which  has  been  sacrificed. 

The  general  principle  of  contribution  may  be  summed 
up  in  one  sentence :  it  must  be  determined  how  much 
better  off,  in  a  pecuniary  sense,  each  owner  of  property 
exposed  to  hazard  on  shipboard  would  be  in  the  event  of 
a  safe  arrival  than  in  tlie  event  of  a  total  loss :  and  on 


I 


SECT.  J-XL\.]      CONTKIBUTING  INTERESTS  AND  VALUES.  351 

this  amount,  which  represents  the  benefit  derived  by 
each  from  the  sacrifice  which  has  saved  the  ship,  each 
must  contribute. 

The  shipowner  has  saved,  at  all  events,  his  ship,  and 
perhaps  also  his  freight. 

§  69.  The  first  contributing  interest,  then,  is  the  Value  of  ship. 
ship.  This  must  contribute  upon  its  actual  value  to  the 
owner,  at  that  point  of  time  which,  according  to  the  rules 
already  laid  down,  is  to  form  tlie  basis  of  adjustment, 
and  in  the  actual  condition,  whether  sound  or  damaged, 
in  which  the  ship  was  at  that  time. 

To  determine  the  actual  value  of  a  ship  is  not  always 
very  easy.  On  principle,  a  merchant-ship  being  simply 
a  machine  for  earning  freights,  the  real  value  of  a  ship 
to  her  owner  is,  the  present  capitalized  value  of  all  her 
future  earnings,  so  long  as  she  can  be  used  as  a  ship, 
after  deduction  of  her  working  expenses  ;  to  which  must 
be  added,  the  present  value  of  the  sum  for  which  she 
may  eventually  be  sold  to  be  broken  up.  But,  as  the 
data  for  such  a  calculation  do  not  exist,  we  have  to  adopt 
other  tests,  in  the  way  of  approximation.  One  such  test 
is  the  value  in  the  market,  which  represents  the  current 
opinions  of  shipowners  on  the  point.  This  test  can  be 
adopted  when  there  is  a  market  for  ships  of  the  kind, 
sufficiently  extensive  to  give  a  fair  approximation  to  the 
ship's  real  value.  In  the  case  of  ships  of  a  peculiar  build, 
or  exceptional  size,  or  having  qualities  which  specially 
adapt  them  to  some  one  limited  trade,  the  value  in  the 
market  may  not  come  near  to  the  real  value.  In  such 
a  case  it  may  be  necessary  to  take  account  of  the  first 
cost ;  to  make  a  deduction  for  age  and  wear  and  tear; 
to  allow,  likewise,  for  changes  that  may  have  taken 
place,  since  the  ship  was  built,  in  the  cost  of  materials 


352  CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

or  the  price  of  labour,  or  for  later  improvements  in  con- 
struction which  may  diminish  her  relative  value.  In 
short,  no  inflexible  rule  can  be  laid  down  beyond  this : 
the  principle  is,  the  ship  is  to  be  valued  at  that  sum  for 
which  the  owner  as  a  reasonable  man  would  be  willing 
to  sell  her :  and  this  sum  must  be  ascertained  by  the 
adjuster  as  well  as  he  can  (a). 
Dediiotions  to  The  deductions  to  be  made,  in  certain  cases,  from 

be  made  from 

value  of  ship,  fhis  valuc  are  to  be  regulated  by  the  principle,  above 
laid  down,  tliat  the  owner  of  the  ship  is  to  contribute  in 
respect  of  the  benefit  he  has  derived  from  his  ship 
having  been  saved  instead  of  being  totally  lost.  If  she 
is  saved  in  a  damaged  condition,  the  necessary  cost  of 
repairing  her  is  to  be  deducted  from  her  value  when 
repaired.  This  must  be  done  in  all  cases,  when  the 
damage  has  taken  place  previously  to  the  general  average 
act,  and  has  not,  up  to  that  point,  been  repaired.  When 
the  damage  has  taken  place  subsequently  to  the  act,  the 
question  whether  the  cost  of  repair  is  to  be  deducted 
from  the  value  must  depend  on  whether  the  basis  of 
adjustment  is  to  be  the  value  at  the  end  of  the  voyage, 
or  the  value  at  the  place  where  the  general  average 
expenditure  is  incurred.  On  principle,  as  has  been  seen, 
a  distinction  should  be  made  in  this  respect  between  the 
case  of  a  sacrifice  such  as  a  jettison,  and  that  of  expendi- 
ture incurred  at  an  intermediate  port.  In  the  former 
case,  the  values  at  the  end  of  the  adventure  being  the 
basis,  the  whole  cost  of  repairing  should  be  deducted  : 
in  the  latter,  only  so  much  as  represents  damage  done 
previously  to  the  incurring  of  the  expenditure.  In 
practice,  the  opinions  of  adjusters  are  divided ;  but  the 

{(i)  See  African   Steamship   Co.  v.       9.     See  also  The  Earmonidcs,  [1903] 
Swanzy    (1S56),    2    K.     &    J.    660;       P.  1. 
Orainger  v.  Martin  (1862),  4  B.  &  S. 


M\ 


SECT.  LXX.J       CONTKIBUTING  INTERESTS  AND  VALUES.  353 

majority  incline  to  the  deduction  of  the  entire  damage  in 
all  cases. 

What  is  here  said  as  to  the  deduction  for  damage  to 
a  ship  applies  equally  to  the  case  of  damage  to  cargo. 

To  tlie  value  of  the  ship,  thus  determined,  with 
this  deduction,  must  be  added,  on  the  principle  already 
laid  down(^),  any  amount  allowed  in  general  average 
for  damage  done  by  a  sacrifice  for  the  common  safety. 

§  70.  The  rules  for  the  valuation  of  the  cargo  have  vaiue  of 
been  laid  down  by  anticipation,  in  defining  the  amount  ^^^°^' 
to  be  made  good  for  a  jettison. 

The  cargo  is  to  contribute  on  its  market  value  at 
the  date  of  delivery,  or  at  the  time  and  place  which 
form  the  basis  of  adjustment,  deducting  therefrom  such 
expenses  as  the  merchant  must  incur  in  the  event  of 
delivery  and  will  escape  in  the  event  of  total  loss  ;  that 
is,  the  discount,  freight,  landing  and  warehousing  charges, 
duty,  and  brokerage  (c).  The  cost  of  marine  insurance  is 
not  to  be  deducted  :  nor,  for  the  reason  above  given  [d), 
the  commission  payable  to  a  consignee.  Sales  afloat  are 
disregarded,  as  speculations  which  cannot  affect  third 
parties.  If  the  goods  are  damaged,  it  is  the  value  in 
the  damaged  state,  only,  which  contributes  ;  subject  to 
what  was  said  above  with  reference  to  damage  suffered 
subsequently  to  the  incurring  of  the  general  average 
expenditure  (e). 

When  the  average  is  adjusted  at  the  port  of  loading, 
and  on  the  state  of  facts  then  subsisting,  the  value  of  the 
cargo  at  the  port  of  loading  must  form  the  basis  of  con- 

(6)  Ante,  p.  336.  Lines   (1900-2),    102    Fed.    E.    184  ; 

(c)  Salvage   or  particular  charges  114  Fed.  E.  307 ;  Carver,  §  419.) 
payable    in    respect    of    the    goods  (d)  Ante,  p.  337. 

should  also  be  deducted.     {The  Eliza  (e)  Ante,  p.  300  et  scq. 

L.  A   A 


354 


CONTRIBUTING  INTERESTS  AND  VALUES.       fcHAP.  VIII. 


tribution.  This  value  is  in  practice  usually  taken  to  be 
the  invoice  cost  of  the  goods,  which  for  ordinary  purposes 
is  a  sufficiently  close  approximation  ;  though  in  the  event 
of  a  change  in  the  market  between  the  date  of  purchase 
and  the  date  which  should  form  the  basis  of  adjustment, 
the  invoice  cost  would  not  represent  the  real  value  of  the 
goods  at  the  time  (/). 


Freig'ht. 


Under  bills  of 
lading. 


Prepaid 
freight. 


§  71.  Besides  the  ship  and  the  cargo,  the  freight 
must  contribute  to  the  general  average. 

Under  ordinary  circumstances,  when  the  goods  are 
shipped  under  a  bill  of  lading,  and  the  payment  of  the 
freight  is  conditional  upon  the  arrival  and  delivery  of 
the  cargo,  it  is  clear  that  the  rescuing  of  the  ship  and 
cargo  from  total  loss  confers  upon  the  shipowner  an 
advantage,  in  excess  of  the  value  of  his  ship,  to  the 
extent  of  the  amount  of  freight  earned,  minus  those 
expenses  of  earning  it  which  would  have  been  saved  had 
the  ship  been  lost.  This  difference  represents  the  con- 
tributory value  of  the  freight  in  such  a  case  {g). 

If  the  freight  has  been  absolutely  prepaid,  or  has 


(/)  In  Fletcher  \.  Alexander {\S?^S), 
L.  E.  3  C.  P.  375,  where  the  adven- 
ture was  broken  up  at  the  port  of 
loading,  the  condition  of  the  cargo 
being  such  that  it  could  not  be 
carried  to  its  destination,  the  judges 
were  unanimously  of  opinion  that 
the  contributory  value  of  the  cargo 
was  the  sum  which  it  would  realize. 

.Ajrnould  lays  down  the  rule  that 
where  the  adjustment  is  niade  at  the 
port  of  loading,  the  contributory 
value  of  the  goods  is  their  cost  on 
board,  i.e.,  the  amount  of  the  trades- 
men's bills  and  shipping  charges. 
(Arnould,  2nd  edit.  p.  9.37  ;  Sth  edit. 
§  990.)  The  inclusion  of  the  shipping 
charges  cannot,  however,  be  justified 


where  the  voyage  is  broken  up,  for 
the  value  of  the  goods  when  they 
are  re- delivered  to  the  shipper  at 
the  port  of  loading  has  not  been 
enhanced  by  the  payment  of  the 
shipi^ing  charges. 

((/)  See  per  Gorell  Barnes,  J.,  in 
The  Bru/ella,  [1893]  P.  189,  196. 
Xo.  32  of  the  Eules  of  Practice  of 
the  xVssociation  of  Average  Adjusters 
provides  that  the  freight  is  to  con- 
tribute upon  its  gross  amount,  de- 
ducting such  port-charges  as  the 
shipowner  shall  incur  after  the  date 
of  the  general  average  act,  and  such 
wages  of  the  crew  as  he  shall  become 
liable  for  after  that  date. 


SECT.  LXXI.]       CONTRIBUTING  INTERESTS  AND  VALUES.  355 

been  made  payable  independently  of  the  ship's  loss  or 
safety,  then  the  advantage  derivable  from  the  perfomi- 
ance  of  the  voyage  is  transferred  from  the  shipowner  to 
the  owner  of  the  goods.  The  value  of  the  goods  is 
increased  by  the  amount  of  freight  paid  on  them.  In 
such  a  case,  then,  the  shipowner  does  not  contribute  in 
respect  of  the  freight :  the  freiglit  is  not  deducted  from 
the  market  value  of  the  goods,  when  that  is  the  basis  of 
contribution ;  and,  if  the  goods  are  made  to  contribute 
•on  their  invoice  cost  (h),  the  advance  freight  must  be 
added  to  it  (i). 

If,  indeed,  the  general  average  is  adjusted  at  the 
port  of  loading  because  the  ship  is  wrecked  or  condemned 
there,  so  that  in  result  the  owner  of  the  cargo  derives  no 
advantage  from  having  pre-paid  the  freight,  the  advance 
freight  does  not  contribute  at  all.  For,  in  such  a  case, 
the  advance  freight  is  really  lost.  The  ground  of  its 
contributing  is,  that  the  goods  are  more  valuable  to  the 
owner  of  them  when  he  has  purchased  for  them  the  right 
of  being  carried  in  the  ship  freight  free  :  which  is  onl}" 
true  when  the  goods  are  or  can  be  carried  in  the  ship(y ). 

If  the  cargo  (k),  or  any  part  of  it,   belongs  to  the  Cj,rgo  be- 
owner  of  the  ship,  its  value  at  the  port  of  destination  is  sMfow^er. 
of  course  the  same  as  if  similar  goods  had  belonged  to 
some  one  else.     At  any  point  of  the  voyage,  then,  where 

{h)  Such  a  case  is  only  likely  to  owner   of  the   cargo   who  pays    for 

arise,  where  the  adjustment  is  based  both. 

on  the  values  at  the  port  of  destina^  (/)  Fletcher  v.    Altxander  (1868), 

tion,  when  there  is  no  market  for  L.  E.  3  C.  P.  375. 

the  goods  in  question.  (k)  See  the  judgment    in    Mont- 

(?)  It  is  sometimes  found  convc-  (jomert/  v.  Indemnitij  Mutual  Marine 

nient  to  keep  separate  the  contribu-  Ins.  Co.,  [1902]  1  K.  B.  734  (C.  A.), 

tion  of  the  cargo  and   that   of  the  post,  p.  359,  n.  (7),  with  reference  to 

-advance  freight ;  but  this  is  merely  the  position  when  all  the  property  at 

•done  for  the  convenience  of  settle-  risk  belongs  to  the  shipo-wner. 


tnent  with  underwriters.     It   is  the 

A   A 


Q 


356  CONTEIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIIK 

the  value  of  such  goods  has  to  be  determined  for  tlie 
l)urpose  of  contribution,  that  value  is  to  be  put  on  an 
equality  with  like  goods  belonging  to  a  stranger.  If  the 
basis  of  contribution  is  its  value  at  the  place  of  destina- 
tion, no  freight  is  to  be  deducted ;  or  if,  for  convenience, 
a  deduction  is  made  of  the  freight  at  the  rate  that  would 
be  charged  to  a  stranger,  that  same  amount  of  freiglit 
must  be  brought  in  again  to  contribute  on  its  own 
account.  When  the  invoice  cost  is  taken  as  the  basis, 
an  addition  to  this  must  be  made  of  such  current  freiiJfht ; 
that  is  to  say,  of  the  rate  current  at  the  time  of  ship- 
ment, and  which  would  have  been  charged  to  a  third 
party.  This  is,  of  course,  subject  to  the  exception 
pointed  out  in  the  preceding  paragraph. 
Chartered  Up  to  this  point,  the  subjcct  of  Contributory  values 

is  perfectly  simple,  being  merely  the  development  of  a 
single  principle,  itself  self-evident,  as  being  involved  in 
the  rule  of  equity  which  constitutes  general  average. 
Complications  are  introduced,  when  we  have  to  deal  with 
the  contribution  of  freight  under  a  charter. 

The  chartering  of  ships  may,  for  convenience  of 
discussing  the  present  subject,  be  reduced  imder  three 
classes.  First,  a  ship  may  be  chartered  to  fetch  or  take 
a  cargo,  or  portion  of  a  cargo,  belonging  to  the  charterer. 
Secondly,  the  charterer  ma}"  be  a  mere  speculator,  who 
hires  a  ship,  for  a  specified  sum  or  rate,  to  make  a  par- 
ticular voyage,  intending  himself  to  put  her  up  as  a 
general  ship,  and  load  her  with  the  goods  of  third 
persons ;  hoping  to  make  a  profit  by  the  difference 
between  the  rate  of  freight  he  pays  to  the  shipowner  | 

and  the  rate  he  receives  from  the  merchant.  Thirdlv, 
the  ship  may  be  chartered,  either  for  a  period  of  time, 
or  for  a  succession  of  voyages,  by  a  middle-man,  who^ 
whether  in  law  he  is  or  is  not  regarded  as  the  temporary 


I 


vSECT.  LXXI.]       CONTRIBUTING  INTERESTS  AND  VALUES.  '^57 

owner  of  the  ship,  does  propose  really  to  work  her  for 
his  own  profit  as  the  owner,  the  actual  owner  farming 
the  ship  out  to  him  for  the  purpose.  In  this  last  case, 
whether  the  charterer  appoints  the  master  and  crew,  or 
accepts  those  appointed  by  the  shipowner,  is  for  our 
present  purpose  immaterial. 

We  will  discuss  these  three  cases  in  order,  beerinnino;- 
with  that  which  is  the  simplest,  as  departing  least  from 
the  ordinary  method  of  affreightment  by  bill  of  lading. 

In   the  first  of  these    three   cases,   when  a  ship  is  of  charters  to 

,  ,  .  fetch  cargo 

chartered  to  fetch  or  carry  a  cargo  belonging  to  the  belonging  to 
charterer,  the  freight  under  the  charter  must  contribute 
to  the  general  average,  whether  the  cargo  is  on  board  the 
ship  at  the  time  of  the  general  average  act,  or  not ;  since 
the  loss  of  the  chartered  ship,  whether  laden  or  not, 
would  deprive  the  shipowner  of  his  expected  freight. 

This  appears  from  the  decision  in  Williams  v.  The 
London  Assurance  Coinpaufj  [l).  A  ship  was  chartered  by 
the  East  India  Company,  to  load  a  cargo  in  London  for 
a  port  or  ports  in  the  East  Indies,  and  there  take  in  and 
carry  other  cargoes  as  directed  by  the  Company's  agents, 
and  finally  return  from  her  last  port  in  India  with  a 
cargo  for  London.  For  this  service,  freight  at  specified 
rates  was  to  be  paid,  provided  the  ship  returned  to 
Ijondoii  in  safety,  but  not  otherwise.  A  sum  of  8,000/., 
in  anticipation  of  freight,  was  payable  on  sailing  out- 
wards. Under  this  charter  she  sailed  from  London  ;  but, 
having  by  stress  of  weather  been  driven  on  a  sandbank 
near  the  Nore,  she  was  obliged  to  unload  her  cargo  and 
return  to  London  to  repair ;  which  having  been  done,  she 
proceeded  on  her  voyage.  This  accident  gave  rise  to  a 
claim  for  general  average;  and  for  tliis,  a  dispute  having 
arisen  as  to  the  amount  of  liability,  an  action  was  brought 

(/)  (1813),  1  M.  &  S.  ;318. 


3-58  CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

by  the  shipowner  against  one  of  his  underwriters.  At 
tlie  time  of  commencing  the  action,  the  ship  was  still 
absent  on  her  voyage.  The  point  in  dispute  was,, 
whether  the  freight  to  be  earned  under  this  charter-joarty, 
the  amount  of  which  was  estimated  at  5,740/.,  should  be 
brought  in  as  an  interest  contributing  to  the  general 
average. 

It  is  mentioned  in  the  report  of  the  case  that, 
between  the  time  of  bringing  the  action  and  the  trial,  the 
ship  had  arrived  in  the  Thames  with  her  homeward  cargo 
on  board,  but  had  not  reached  her  moorings,  nor  was  yet 
in  a  situation  to  deliver  her  cargo.  In  the  argument, 
some  stress  was  laid  on  this  circumstance ;  and  it  was 
agreed  by  counsel  that  the  freight  should  be  taken  as 
actually  earned. 

The  Court  of  King's  Bench  unanimous!}^  deter- 
mined that  the  freight  under  the  charter  must  contribute. 
"It  is  contended,"  said  Lord  Ellenborough,  "that  the 
whole  freight  out  and  home  is  not  liable :  but  the  whole 
was  affected,  and  might  have  been  frustrated  by  the  loss, 
and  was  eventually  preserved  to  the  owners  by  the  re- 
pairs done  to  the  sliip."  .  .  .  .  "  The  difficulty  as  to  the 
outward  and  homeward  voyage  seems  to  bo  removed  by 
the  consideration  that  the  whole  freight  was  saved  b\'  the 
repairs.''  Le  Blanc,  J.,  said  : — "  The  stress  of  the  argu- 
ment for  the  plaintiffs  is  this,  that  the  contribution  was 
uncertain  at  the  time  of  the  loss.  But,  in  all  cases  of 
contribution  to  general  average,  freight  cannot  at  the 
moment  of  the  loss  be  received,  and  therefore  the  contri- 
bution must  be  always  uncertain ;  and  yet  in  Da  Costa  y. 
Newnham^  freight  was  determined  to  be  contributory.  It 
is  therefore  not  a  decisive  argument  against  its  being 
contributory,  that  the  thing  does  not  exist  in  certainty  at 
the  time  of  the  loss."     And  Bayley,  J.,  said: — "Here 


SECT.  LXXI.J       CONTRIBUTING  INTERESTS  AND  VALUES. 

the  plaintiff  had  a  vested  right  of  freight ;  he  had  some 
freight  then  actually  due,  and  the  whole  was  put  in 
hazard,  and  the  whole  has  been  ultimately  earned,  .  .  . 
This  freight  was  one  entire  and  indivisible  sum,  payable 
for  the  use  of  the  ship  out  and  home  ;  therefore,  when 
ultimately  earned,  having  been  put  in  hazard,  and  saved, 
it  ought  to  contribute  "  (;«). 

[The  decision  in  Williams  v.  London  Assurance  Co. 
has  been  criticised  bv  some  writers  (n),  but  the  liability 
of  the  homeward  chartered  freight  to  contribute  to  a 
general  average  loss  on  the  outward  voyage  was  not 
disputed  in  3Ioran  v.  Jones  (o),  and  was  affirmed  in  the 
case  of  aS'.^S'.  Carisbrook  Co.  v.  London  and  Provincial 
Marine  Insurance  Co.[p).  The  facts  in  this  case  were 
that  a  vessel  was  chartered  to  proceed  to  Savannah,  and 
there,  having  discharged  her  cargo  (if  any),  to  load  a 
cargo  of  cotton  and  proceed  therewith  to  Liverpool, 
Manchester  or  Bremen.  She  sailed  in  ballast  from 
Fleetwood  to  Savannah,  and  in  the  course  of  the  voyage 
a  general  average  sacrifice  was  made.  She  subsequently 
arrived  at  Savannah,  loaded  her  cargo,  and  earned  her 
freight  by  completing  the  voyage.  The  shipowners 
having  sued  the  underwriters  on  the  ship  for  a  particular 
average  loss,  the  underwriters  contended  that  the  ship- 
owners were  liable  to  contribute  as  in  general  average  (''/) 


{m)   Williams  v.  London  Assurance  ((j)  Where  the  interests  at  risk  are 

Co.  (1813),  1  M.  &  S.  318.  owned  bj^  the  same  person,  so  that 

(/c)  See  Benecke,  p.  315  ;  Arnoiild,  there   is   no   contribution,   losses   in 

'ind     edit.    vol.    2,    pp.    955,    956 ;  the  nature  of  general  average  must 

Phillips,    vol.   2,  §  1387.      Sec   also  nevertheless  be  adjusted  between  him 

per  Willes,  J.,  in  Fatter  v.   HaiiLin  and  his  insurers  as  if  the  interests 

(18G8),  L.  E.  3  C.  P.  562,  567.  were    owned    bj*    different    parties. 

(o)  (1857),  7  E.  &  B.  523.  {Moidfjomery    v.    Indemnitji    Mutual 

Ip)  [1901]  2  K.  B.  861  ;   [1902]  2  Marine  Ins.  Co.,  [1902]  1  Iv.   B.  734 

K.  B.  681  (C.  A.).  (C.    A.)  ;     Marine    Insurance    Act, 

1906,  s.  66,  sub-s.  7.) 


359 


360 


CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

in  respect  of  the  chartered  freight,  and  both  Mathew,  J., 
and  the  Court  of  Appeal  held  on  the  authority  of 
Williams  v.  London  Assurance  Co.  that  their  contention 
was  well  founded.  In  the  course  of  his  judgment, 
Collins,  M.R.,  said: — 

"Looking  at  the  matter  in  point  of  principle,  and  apart  from 
authority,  it  would  seem  to  me  that  the  freight  should  be  one  of  the 
contributories  in  such  a  case  as  this.  The  vessel  in  a  round  charter 
such  as  this  is  earning  the  only  freight  that  is  payable  from  the 
moment  it  breaks  ground  down  to  the  time  it  delivers  the  cargo  at  the 
ultimate  port.  .  .  .  No  doubt  there  are  differences  of  convenience 
when  there  is  a  cargo  carried  to  the  intermediate  port  as  distinguished 
from  the  case  where  no  cargo  is  carried  to  the  intermediate  port,  and 
if  cargo  is  carried  under  a  charter  which  entitles  the  ship  to  a  freight 
at  the  intermediate  port,  one  can  easily  understand  why  the  average 
adjusters  should  make  a  difference  and  limit  the  contribution  in 
respect  of  such  an  average  sacrifice,  on  what  I  may  call  the  first  part 
of  the  voyage,  to  the  freight  which  was  to  be  earned  at  the  first  port 
where  the  cargo  was  to  be  discharged.  No  doubt  the  principle  laid 
down  in  Williams  v.  London  Assurance  Co.  is  open  to  some  criticism, 
but  it  seems  to  me,  on  the  whole,  to  be  a  sound  working  practical  rule, 
and,  speaking  for  myself,  I  am  not  able  to  find  any  better  one.  It 
seems  to  me  the  difficulties  suggested  by  those  writers  who  have 
questioned  the  rule  adopted  in  Williams  v.  London  Assurance  Co.  are 
greater  than  the  difficulties  of  the  rule  itself.  But  I  think,  also,  that 
it  has  been  sliown  that  the  objections  are  really  not  so  formidable  as 
they  might  at  first  appear.  They  are  objections  pointing  to  the 
difficulty  of  estimating  the  proper  value  to  be  put  uj^on  the  freight  at 
risk,  rather  than  difficulties  arising  from  taking  it  into  consideration 
at  all.  In  such  a  case  as  this,  where  there  is  no  cargo  taken  out  and 
the  ship  goes  out  in  ballast  to  some  intermediate  place  and  there  loads 
a  cargo,  I  do  not  understand  it  is  questioned  that  in  some  form  or 
other  the  freight  to  be  earned  vo^ovl  the  round  voyage  ought  to  be 
taken  into  consideration,  although  it  is  suggested  it  ought  to  be 
apportioned,  and  somehow  or  other  an  estimate  arrived  at  of  what 
freight  would  be  taken  to  be  earned,  if  earned  at  all,  at  the  inter- 
mediate place.  I  think,  notwithstanding,  whatever  may  be  the  true 
view,  and  whether  these  writers  are  right  or  wrong  in  their  views  as 
to  what  ought  to  be  the  law,  the  law  laid  down  in  Williams  v.  London 
AssxirancK  Co.  is  the  law  of  this  country."] 


SPXT.   LXXI.J       CONTRIBUTING  INTERESTS  AND  VALUES.  361 

There  are  some  passages  in  the  judgment  in  WilUanifi 
V.  London  Assurance  Co.  from  which  it  might  be  inferred 
that  the  circumstance  that  tlie  chartered  freiglit  was  in 
fact  eventually  earned  formed  a  material  point ;  that,  in 
fact,  the  freight  would  not  have  been  made  to  contribute 
had  the  ship  been  lost  on  the  way  home.  No  great 
weight,  however,  can  be  attached  to  these  dicta.  The 
question  raised  by  them  forms  part  of  the  wider  question, 
what  period  of  time,  and  what  state  of  facts,  are  to  be 
taken  as  the  basis  of  contribution  ?  a  question  which  was 
not  discussed  at  the  trial. 

It  seems  reasonable  to  hold  that,  wherever  there  is  a 
freight  that  can  be  insured,  there  is  a  freight  that  should 
contribute  to  general  average.  For,  the  principle  which 
regulates  the  right  to  insure  future  freight  is  this :  there 
must,  at  the  time  at  which  the  policy  is  made  to  attach, 
be  a  legal  certainty, — that  is  to  say,  a  certainty  contin- 
gent only  on  perils  which  may  be  insured  against, — of 
earning  freight :  and,  wherever  there  is  such  a  certainty, 
there  is  an  interest  which  is  exposed  to  hazard  by  sea 
peril,  and  has  been  rescued  from  loss  by  the  general 
average  act  (r). 

{>•)  The  term  "  legal  certainty ''  is  Flint  v.  Fhmijiuj  (1830),  1  B.  &  Ad. 
only  used  by  Mr.  Lowndes,  and  the  at  p.  48  ;  1  Arnould,  2nd  edit.  pp.  288, 
authorities  do  not  establish  the  posi-  289.)     When  the  rule  is  so  stated,  the 
tive  rule  that  there  is  an  insurable  condition  that  there  must  have  been 
mterest  when  there  is  the  certainty  an  inception   of  performance  of  the 
of   which   he   speaks.      The   rule   is  contract   (see    infra,    §    72}   may   be 
usually  stated  negatively,  i.e.,  that  regarded   as   a   deduction   from   the 
there  cannot  be  an  insurable  interest  rule.     For   a   full  discussion  of  the 
unless  it  is  certain  that  but  for  the  question  when  the  insurable  interest 
perils  insured    against    the    freight  in  freight  commences,  see  1  Arnould, 
would  have  been  earned,  and  is  so  8th  edit.  §§  272-279. 
stated  with  reference  to  the  perils  of  The   editors  fail  to   see  why   the 
the  voyage  on  which  the  freight  is  to  be  existence   of    an   insurable    interest 
earned.    (See  per  Lord  EUenborough,  should  be  the  test  of  liability  to  con- 
in  i^o/-6es  v.  ylspmor//' (1811),  13  East,  tribute    in    general    average.      Mr. 
at  p.  325;    per  Lord  Tenterden,  in  Lowndes'    view    is    opposed    to   the 


362 


CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 


When  does 
the  interest  in 
freight  com- 
mence ? 


§  72.  The  time  at  which  the  insurable  interest  in 
freiiiht  commences  has  been  defined  bv  several  decisions 
in  the  comets.  The  principles  to  be  extracted  from  these 
decisions  may  for  our  ^^resent  purpose  be  reduced  under 
two  heads.  First,  it  is  immaterial  how  complicated  may 
be  the  voyage  or  voyages  stipulated  for  under  the  charter, 
of  how  many  parts  it  may  consist,  or  how  many  distinct 
cargoes  may  have  to  be  carried,  provided  the  charter 
from  first  to  last  be  one  and  entire.  Secondly,  it  is  not 
enough  that  the  charter  has  been  executed :  there  must 
likewise  have  been  an  inception  of  performance  under  it  (6'). 
The  reasonableness  of  this  last  condition  is  not  perfectly 
clear(/);  for  it  does  not  seem  to  be  involved  in  the  principle 
which  merely  requires  a  legal  certainty  of  earning  freight 
as  the  condition  of  insurable  interest;  which  certainty 
in  fact  exists  so  soon  as  the  charter  is  signed  (u).  If,  for 
example,  after  a  charter  has  been  legally  executed,  but 
before  the  ship  has  been  moved  out  of  the  dock  where 
she  lies,  or  any  step  has  been  taken  towards  placing  her 


opinions  of  Willes  and  Blackbiirn, 
JJ.,  on  this  point  in  Rankin  v.  Potter, 
cited,  infra,  note  {x).  See  also  post, 
p.  365,  note  (a). 

(s)  On  the  authorities  it  seems  to 
the  editors  more  correct  to  say  that 
there  is  an  insurable  interest  either 
when  there  has  been  an  inception  of 
the  voyage  described  in  the  charter- 
party,  or  when  the  shipowner  has 
taken  some  step  for  the  pui-pose 
of  performing  his  contract.  (See 
1  Arnould,  8th  edit.  §§  272-279; 
and  see  also  the  cases  quoted  in 
note  (x),  infra.) 

{t)  An  argument  in  favour  of  the 
reasonableness  of  this  condition  is 
that  it  restricts  the  violation  of  the 
fundamental  principle  of  indemnity 
due  to  the  rule  that  the  assured  is 
entitled  to  recover  the  gross  freight. 


If,  as  Mr.  Lowndes  thinks  ought  to 
be  the  rule,  the  assured  had  an 
insurable  interest  in  his  freight  as 
soon  as  he  had  made  a  contract,  a 
shipowner  who  made  saj'  three 
separate  charter-party  contracts  for 
successive  voyages  could  at  once 
effect  insurances  on  all  three,  and  if 
the  ship  were  lost  immediately  after- 
wards recover  the  gross  amounts  of 
all  the  freights.  It  is  true  that  at 
present  the  principle  of  indemnity 
is  violated  to  a  considerable  extent, 
if  a  loss  takes  place  before  much 
expense  has  been  incurred  on  the 
voyage,  the  freight  of  which  has 
been  insured  ;  but  that  circumstance 
is  hardly  a  reason  for  not  drawing  a 
line  to  prevent  gi-eater  violations  of 
the  principle. 

{u)  See,  however,  note  (r),  supra 


% 
M 


SECT.  LXXII.]       CONTRIBUTING  INTERESTS  AND  VALUES. 


363 


ill  the  service  of  the  charterer,  the  ship  is  destroyed  by 
fire,  the  shipowner's  loss  of  the  chartered  freight  is  the 
same  loss,  depriving  him  of  an  expected  gain  which  at 
that  period  was  as  certain,  as  if  the  ship  had  been  lost 
while  going  out  in  ballast,  or  with  the  goods  on  board. 
Still,  the  cases,  thougli  not  very  clearly,  indicate  this 
limitation  (x). 


{x)   Williamson  v.  Innes  (1831),   1 
Moo.  &  E.  88;  8  Bing.  81,  n. ;   Forbes 
V.  Aspinall  (1811),   13  East,  323;  De 
Vaux  V.  Janson  (1839),  5  Bing.  N.  C. 
519.     In  Barber  v.  Fleming,  Black- 
burn, J.,  said :—  "  "\^Tien  a  sliipowner 
has  got  a  contract  with  another  per- 
son for  freight,  and  has  taken  steps 
and  incurred  expense  upon  the  voj'- 
age    towards    earning   it,    then    his 
interest  ceases  to   be  a    contingent 
thing,  but  becomes  an  inchoate  in- 
terest, and  is  an  interest  which,  if 
afterwards  destroyed  by  one  of  the 
perils  insured  against,  is  lost,   and 
ought  to  be  paid  for  by  the  under- 
writers."    ((1869),  L.  E.  o  Q.  B.  71.) 
The  most  recent  decision  uj^on  the 
subject  {Foley  v.  United  Fire  and  Life 
Insurance   Go.   (1870),   L.  E.  5  C.  P. 
155  (Exch.  Ch.)),  reduces  the  limita- 
tion in  question  within  very  narrow 
bounds,  if  it  does  not  really  do  away 
with  it  altogether.     A   ship,    which 
had  been  chartered  in  Calcutta   to 
carry  a  cargo  to  Mauritius,  and  had 
loaded  her  cargo,  was  again   char- 
tered to  proceed  on  her  present  voy- 
age to  Mauritius,  and,  having  dis- 
charged her  cargo  there,  to  jiroceed 
to  Akyab,  and  there  load  a  cargo  of 
rice  for  the  United  Kingdom.     The 
freight    under    this    second   charter 
was  insured  at  and  from  Mauritius  to 
Akyab,  &c.  After  the  ship  had  reached 
Maiiritius,   and  while   she  was  still 
unloading  her  cargo,  a  gale  came  on, 
in  which  she  was  wrecked.  The  ques- 


tion came  to  trial,  whether,  at  the 
time  of  loss,  there  was  an  inception 
of  insui'able  interest  under  the  home- 
ward charter.  Eor  the  underwriter, 
it  was  strongly  urged  that  this  was 
not  so,  since  up  to  that  period  there 
had  been  no  inception  of  performance 
under  the  second  charter-party ;  the 
vessel  being  still  engaged  in  carrying 
out  the  charter-party  entered  into 
previously.  This  argument,  how- 
ever, was  overruled  by  the  court. 
Kelly,  C.  B.,  said: — "The  real  doc- 
trine is  this ;  if  the  voyage,  bj'  means 
of  which  the  chartered  freight  is  to 
be  earned,  has  commenced,  there  is 
an  inchoate  interest  in  the  freight, 
and  the  risk  attaches ;  jirovided  the 
language  of  the  charter,  taken  -n'ith 
the  policy,  will  warrant  that  view  of 

the  case That  brings  us 

to  consider  what  are  the  terms  of  this 
charter-party.  Now,  it  is  the  express 
contract  in  the  charter-party  that  the 
voyage  shall  commence  at  Calcutta ; 
and  the  inchoate  right  to  the  char- 
tered freight  commenced  when  the 
voyage  from  Calcutta  commenced." 
In  Potter  v.  Jiankin  ((1868-1870), 
L.  E.  3  C.  P.  502;  5  C.  P.  341), 
where  a  shij),  while  on  her  voyage 
from  Liverpool  to  New  Zealand,  was 
chartered  to  go  thence  to  Calcutta, 
and  there  load  a  homeward  cargo,  no 
question  was  raised  either  in  the 
Common  Pleas  or  Exchequer  Cham- 
ber, as  to  the  legality  of  an  insurance 
of  the  homeward  freight  for  the  out- 


364 


CONTRIBUTING  INTERESTS  AND  VALUES.       fCHAP.  VIII. 


This,  then,  may  bo  laid  down  as  a  rule  of  practice 
for  chartered  ships  :  whenever  a  sliip  is  chartered  under 
an  entire  contract,  the  freight  to  fall  due  under  the 
cliarter  must  contribute  towards  a  i2:eneral  averaore  whicli 
occurs  at  any  period  subsequent  to  the  inception  of  the 
chartered  voyage,  whether  the  cargo,  in  respect  of  which 
that  freight  is  to  be  earned,  be  on  board  the  ship  at  the 
time  or  not. 

This  is  so,  if  the  ship  is  at  the  time  in  ballast,  or  is 
laden  with  goods  belonging  to  the  charterer.  It  has  been 
doubted,  however,  whether  the  same  rule  should  apply 
when  there  are  on  board  goods  belonging  to  third  parties, 
who  are  strangers  to  the  charter.  Such  goods  may  be 
shipped  under  contracts  made  either  with  the  shipowner 
or  the  charterer.  It  frequently  happens  that,  when  a 
ship  has  been  chartered  to  go  to  a  distant  port  to  fetch 
home  a  cargo  belonging  to  the  charterer,  it  is  stipulated 
in  the  charter  that,  instead  of  the  ship's  going  out  empty, 
the  shipowner  may  take  out  goods  on  freight  for  his  own 
benefit :  sometimes  such  a  liberty  is  given  to  the  charterer. 
If,  under  such  a  stipulation,  she  is  put  up  as  a  general 
ship,  and  filled  with  goods  for  the  outward  25assage, 
shipped  under  bills  of  lading,  it  has  been  contended  that 
the  freight  under  the  charter-party  ought  not  to  con- 
tribute to  a  general  average  which  mav  occur  on  the  out- 
ward passage.  The  reason  given  is,  that  the  outward 
cargo  has  no  common  interest  with  the  homeward 
freight  (//).      It  is  not  easy  to  understand  this  argument. 


ward  jjassage  to  New  Zealand ;  and 
tlie  right  to  recover  was  distinctly 
recognized  by  the  House  of  Lords. 
{Rankin  v.  Po«er  (1873),  L.  E.  6  H.  L. 
83.)  In  this  case  it  is  to  be  remarked 
that  Willes,  J,,  expressed  an  opinion 
(L.  E.  3  C.  P.  at  p.  567)  that  the 
policy  in  question  would  not  be  lial)lo 


tor  general  average  incurred  on  the 
voyage  out ;  and  that  this  passage 
in  his  judgnjcnt  is  quoted  with  ap- 
proval by  Blackburn,  J.,  in  giving 
his  opinion  to  the  House  of  Lords. 
(L.  E.  ()  II.  L.  at  p.  115.) 
{u)  Baily,  Gen.  Av,  p.  152. 


SECT.  LXXII.]       CONTRIBUTING  INTERESTS  AND  VALUES. 


365 


Every  kind  of  property,  and  every  expectation  of  gain 
which  is  sufficiently  tangible  and  certain  to  be  treated  in 
law  as  on  the  same  footing  as  property,  must,  if  exposed 
to  a  common  hazard,  and  rescued  from  loss  by  the  same 
act,  be  said  to  have,  to  this  extent,  "  a  common  in- 
terest "  (s)  one  with  another.  The  fact  that  the  cargo  on 
board  belongs,  not  to  the  charterer,  but  to  some  third 
party,  does  not  render  the  chartered  freight  less  valuable, 
or  the  earning  of  it  less  certain. 

It  may  be  argued  that,  since  in  such  a  case  the  con- 
tribution must  be  levied  on  the  values  as  existing  at  the 
termination  of  the  common  adventure,  that  is,  when  the 
cargo  quits  the  ship,  the  homeward  freight,  which  at  that 
point  of  time  has  no  existence,  ought  not  to  be  brought 
in  as  a  contributor.  The  answer  is  :  The  contribution  is 
really  between  the  owner  of  the  ship  and  the  owners  of 
the  cargo:  and  we  have  to  consider  the  values,  at  the 
given  point  of  time,  of  the  property  belonging  to  each  ; 
and  the  ship,  at  that  point,  is,  or  may  be,  really  more 
valuable  to  her  owner  by  reason  of  the  existence  of  the 
homeward  charter.  The  dividing  of  the  shipowner's 
contribution  under  the  two  heads  of  ship  and  freight  is, 
for  the  cargo,  immaterial ;  it  is  done  simply  for  the  con- 
venience of  a  settlement  with  insurers  (a). 


(.:)  That  "  common  clangor"  is  the 
foundation  of  Baily's  "  common  in- 
terest," appears  from  his  own  defi- 
nition of  the  priaciple.  (Baily,  Gen. 
Av.  p.  2.) 

((()  So  far  as  the  jjractice  of  English 
average  adjusters  is  concerned,  this 
controversy  has  boon  ended  by  No.  o4 
of  the  Eules  of  Practice  of  the  Asso- 
ciation of  Average  Adjusters,  adopted 
in  1902.  The  rule  provides  that  when 
at  the  time  of  a  general  average  act 
the  vessel  has  on  board  cargo  shipj^ed 


under  charter-party  or  bills  of  lading, 
ulterior  chartered  freight  shall  not 
contribute  to  the  general  average  ; 
and  this  rule,  though  inconsistent 
with  the  adjustment  in  Moran  v. 
Junes  (1857),  7  E.  &  B.  523,  may  bo 
supported  on  the  practical  ground 
that  the  ulterior  freight  cannot,  at 
the  time  when  the  cargo  quits  the 
ship,  bo  properly  estimated  for  the 
purpose  of  contribution.  There  is 
even  the  possibility  that  through 
delaj-,   quarantine,  or  other  unfore- 


366 


CONTRIBUTING  INTERESTS  AND  VALUES. 


Tr' 


CHAP.  VIII. 


Of  speculative  is  73.  We  are  in  the  second  place  to  consider  the  case 

charters.  '  . 

of  those  speculative  charters,  in  which  the  charterer  does 
not  propose  to  load  the  sliip  with  goods  of  his  own,  but 
merely  stands  as  a  middleman  between  shipowner  and 
owners  of  cargo,  paying  tlie  former  at  a  fixed  rate,  and 
making  his  own  contracts  with  the  latter,  looking  for  his 
profit  to  the  difference  between  the  two  rates. 

In  practice,  such  speculative  contracts  are  disre- 
garded for  the  purposes  of  contribution,  being  put  on  the 
same  level  with  speculative  sales  of  the  cargo  when  afloat. 
Tliat  is  to  say,  if  the  general  average  takes  place  after 
the  cargo  has  been  shipped  or  contracted  for,  it  is  the 
freight  under  the  bills  of  lading,  and  that  only,  which  is 
made  to  contribute  (b). 


seen  events  the  expenses  of  earning- 
the  freight  which  ought  to  be  de- 
ducted will  eiiual  the  gross  freight. 

The  editors  also  submit,  notwith- 
standing Mr.  Lowndes'  arguments, 
that  the  rule  of  practice  is  founded 
on  a  correct  principle.  So  far  as  the 
cargo  is  concerned,  the  common 
adventui'e  comes  to  an  end,  and  the 
adjustment  ought  in  general  to  be 
made,  at  its  final  port  of  discharge. 
The  ulterior  freight  is  not  earned  on 
that  adventure,  but  on  an  adventure 
with  which  the  cargo  is  not  con- 
cerned. This  fact  seems  to  the 
editors  a  sufficient  reason  for  not 
making  the  ulterior  freight  liable 
to  contribute  to  a  general  average 
loss  in  the  course  of  the  earlier 
adventure.  (See  the  oj^inions  of 
Willesand  Blackburn,  JJ.,  inliankiu 
V.  Fatter,  cited  supra,  p.  3G4,  n.  (cc), 
and  Carver,  §  439,  where  it  is  pointed 
out  that  if  the  homeward  freight 
were  treated  as  a  contributory  to  the 
outward  cargo,  the  outward  cargo 
should  be  a  contributory  to  a  loss 
of  that  freight  caused  by  a  sacri- 


fice of  the  ship  on  the  outward 
voyage. 

Mr.  Lowndes'  argument  that  it  is 
immaterial  whether  or  not  the  shijj- 
owner's  contribution  is  divided  be- 
tween ship  and  freight  is  not  con- 
sistent with  his  own  statement  in 
the  following  pages  of  the  work  ; 
for  if  the  division  be  made,  the 
ulterior  freight  will  have  to  be 
assessed  at  its  gross  amount,  less 
the  estimated  expenses  of  earning 
it.  (See  post,  p.  372.)  The  net 
amount  will  then  be  added  to  the 
value  of  the  ship  apart  from  her 
engagements,  to  ascertain  the  ship- 
owner's contribution.  On  the  other 
hand,  if  the  division  be  not  made, 
the  value  of  the  ship  will  not  neces- 
sarily be  increased  by  the  amount 
of  the  freight.  If  the  chartered  rate 
does  not  exceed  the  current  rates  of 
freight,  the  value  of  the  ship  will 
probably  be  the  same  (see  infra, 
p.  368)  as  if  the  charter-party  had 
not  been  made. 

(6)  Should  the  rate  under  the  bills 
of  lading  bo  higher  than  the  char- 


Jl 


SECT.  LXXIII.]       CONTRIBUTING  INTERESTS  AND  VALUES.  367 

The  i^ropriety,  and  indeed  necessity,  of  this  rule 
will  appear,  if  we  consider  the  position  of  the  parties  in 
the  case  of  jettison  of  cargo.  All  that  can  be  allowed  on 
the  whole  for  the  jettison  evidently  is,  the  actual  value 
of  the  goods  without  deduction  of  freight.  This  amount 
has  in  some  way  to  be  divided  between  the  owner  of  the 
goods,  the  shipowner,  and  perhaps  the  charterer.  The 
owner  of  the  goods  is  entitled  to  receive  their  value, 
deducting  the  bill  of  lading  rate  of  freight.  If,  then, 
this  rate  is  lower  than  the  chartered  rate,  the  shipowner 
must  lose  the  difference.  But  it  would  be  an  anomaly  to 
make  this  difference  contribute  to  general  average,  when, 
although  liable  to  be  lost  by  reason  of  a  jettison,  such 
loss  would  not  be  compensated  by  contribution  (c). 

This  exclusion  from  general  average  of  the  specula- 
tive portion  of  the  chartered  freight — that  is  to  say,  the 
excess  of  the  chartered  rate  over  the  bill  of  lading  rate- 
only  comes  ijito  operation  after  the  goods  have  been 
shipped  or  contracted  for,  because  it  is  not  till  then  that 
its  unsubstantial  character  is  determined.  If,  there- 
fore, a  general  average  takes  place  while  the  ship  is 
proceeding  in  ballast,  under  such  a  charter,  towards 
the  loading  port,  the  freight  under  the  charter  must 
contribute  (^). 

The  third  class  of  cases  to  be  noticed  consists  of  of  charters 
those  in  which  the  charterer  becomes  in  some  sense  the  iSaTerer 
temporary  owner  of  the  sliip.     If,  for  example,  a  steamer  owntiTthT 
is  chartered  for  twelve   months,   to  be  at  the  absolute  '^"p- 
disposal  of  the  charterer,  and  the  charterer  employs  her 

tered  rate,  the  froi<,'ht's  contribution  as  stated  in  the  text. 

must  of  course  be  divided  between  the  (c)  But  see  against  this,  ante,  p.  107 

shipowner  and  the  charterer  in  the  tt  seq. 

proportions  of  the  benefit  derivable  {d)  See   S.S.   Carisbrook    Castle  v. 

from   the   carriage   by  each.      This,  London  and  Provincial  Mar.  Ins.  Co., 

however,  does  not  affect  the  principle  ante,  p.  359. 


368  CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

to  make  a  series  of  short  coasting  trips,  carrying  perhaps 
twenty  different  cargoes  in  tlie  time,  is  the  ship's  hire 
under  the  charter  to  contribute  to  a  general  average  that 
may  occur  on  any  one  of  these  voyages  ? 

This  is  a  case  in  Avhich  it  is  difficult  to  separate  the 
freight  from  the  value  of  the  ship.  Tlie  value  of  this 
steamer  to  her  owner  is  made  up  of  two  ingredients — 
the  freight  he  is  to  receive  for  the  twelve  months  during 
which  she  has  been  hired,  and  the  value  now  of  a  vessel 
which  is  not  to  come  into  his  possession,  for  any  purpose 
of  profit,  until  the  end  of  twelve  months.  Whether 
these  two  elements  of  value  are  added  together,  and 
taken  as  the  value  of  the  ship,  or  whether  they  are 
divided  under  the  heads  of  shij)  and  freight,  is  a  matter 
of  indifference  to  the  cargo.  If  a  division  is  made,  it 
can  only  be  done  for  convenience  of  settlement  witli 
insurers  on  ship  and  freight ;  and  as,  in  the  case  put, 
the  freic'ht  under  the  charter  is  certainly  insurable,  it 
may  be  more  convenient  so  to  divide  it. 
General  prin-  On  ^^urc  principle,  in  all  these  cases  of  chartered 

freio'hts,  the  basis  of  contribution  ouo'ht  first  to  be 
determined  by  taking  the  value  of  the  ship  and  freight 
together,  and  considering  to  what  extent,  if  at  all,  the 
value  of  the  ship  is  enhanced  by  having  her  engagements 
settled  beforehand.  That  enhancement  never  can  reach 
to  the  full  amount  of  the  chartered  freight.  Strictly 
speaking,  it  reaches  only  to  the  excess  of  the  chartered 
rate  over  the  rates  of  freight  current  at  the  places  where 
the  ship  may  be  ;  since  the  latter  could  be  obtained  were 
the  ship  not  chartered. 

In  dividing  this  total  between  shijD  and  freight,  the 
true  principle  would  seem  to  be,  that  the  value  of  the 
ship,  merely  as  ship,  is,  her  value  apart  from  contracts ; 
in   other  words,   the  sum   she  would   fetch   in  a   proper 


SECT.  LXXIV.]       CONTRIBUTIISG  INTERESTS  AND  VALUES. 

market,  if  free  to  be  sold  without  her  engagements :  and 
the  difference  should  be  taken  as  the  contributory  value 
of  the  freight  (e). 

§  74,  When  it  is  stipulated  in  the  charter-party  that  "^^^^^^^^ 
a  portion  of  the  freight,  instead  of  depending  on  the  com-  i^^^^y 
pletion  of  the  voyage,  shall  be  absolutely  prepaid,  ouglit 
that  circumstance  to  shift  the  burden  of  contribution  to 
general  average,  in  respect  of  that  portion,  from  the  ship- 
owner to  the  charterer  ? 

At  first  sight,  this  seems  to  be  the  height  of  injustice. 
The  charterer,  for  the  benefit  of  the  shipow^ner,  agrees  to 
pay  freight  beforehand,  and  to  pay  absolutely,  even  in 
the  event  of  a  loss  which  may  deprive  him  of  all  advan- 
tage from  the  use  of  the  ship :  is  his  doing  so  to  throw 
upon  him  an  additional  burden,  which  he  did  not  bargain 
for  ?  There  are  not  many  countries,  except  our  own,  in 
which  this  question  has  been  answered  in  the  affirmative. 
Elsewhere  it  is  generally  the  rule  that  the  contribution  to 
general  average  in  respect  of  freight  is  in  all  cases  borne 
by  the  shipowner,  at  whatever  period  of  the  voyage  the 
freight  is  payable.     It  is  not  so  in  this  country. 

The  argument  in  defence  of  the  English  rule  is, 
shortly,  this :  general  average  is  a  species  of  ransom  from 
total  loss,  and  the  liability  for  it  is  to  be  determined  by 
inquiring,  not  what  party  contracted  beforehand,  or 
supposed  he  was  contracting,  to  pay  it,  but  simply,  who 
would  have  been  the  loser,  and  to  what  amount,  had  the 
ship  been  totally  wrecked  instead  of  being  saved.  There 
is  no  reason  why  a  shipowner  and  a  charterer  should  not 
make  a  bargain  together  that  the  freight,  or  a  portion  of 
it,  shall  be  absolutely  prepaid.  In  making  such  a  bar- 
gain, the  charterer  knows  or  ought  to  know  that,  as  a 

(e)  Cf.  coite,  p.  36u,  note  («). 
L.  B  B 


36!) 


irter- 


'^70  CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

necessary  consequence,  the  ship's  safety  becomes  a 
matter  of  greater  importance  to  him,  and  of  less  import- 
ance to  the  shipowner,  precisely  to  the  extent  of  the  pre- 
paid freight :  and  that,  being  thus  more  deeply  interested 
in  her  safety,  he  must  become  a  larger  contributor  to  the 
cost  of  saving  her.  Hence  the  English  rule,  paradoxical 
as  it  certainly  appears  at  first  sight,  is  really  more  con- 
sistent with  the  true  principles  of  general  average  than 
that  which  prevails  in  other  countries. 

That  the  charterer,  and  not  the  shipowner,  is  the 
party  liable  under  English  law  to  contribute  to  general 
average  in  respect  of  prepaid  freight,  is  expressly  deter- 
mined by  Frayes  v.  Worms;  in  which  case  Mellish,  as 
counsel  for  the  charterer,  brought  forward  the  argument 
then  mainly  relied  on  in  the  United  States  (/),  viz. :  that 
the  charterer,  in  making  the  advance,  did  not  contract  to 
incur  an  additional  liability  in  respect  of  general  average  ; 
but  this  argument  was  rejected  by  all  the  judges,  who 
agreed  in  holding  that  the  only  question  was,  who  was 
the  party  that  actually  derived  benefit  from  the  saving  of 
the  ship  [(/). 

This  rule  is  invariably  acted  on  in  the  j^i'actice  of 
adjusting  averages. 
In  what  cases  "\Ye  havc  to  cousidcr,  then,  what  stipulations  in  a 

IS  prepayment  ■■■ 

absolute.  charter- party  have  the  effect  of  constituting  an  absolute 
prepayment  of  freight,  not  to  be  refunded  in  the  event  of 
loss  during  the  voyage.  It  is  necessary  that  this  inten- 
tion should  in  some  way  appear  upon  the  face  of  the 
charter  [or  if  there  is  no  stipulation  for  an  advance  in 
the  charter,  that  the  intention  should  be  clearly  shown 

(/)  See  Phillips,  Ins.  §  U04.     As  (g)  Frayes    v.    Worms    (1865),    19 

to  the  American  law  on  this  subject,  C.  B.  (N.  S.)  159.     See,  also,  to  the 

see  Meldonado  v.  British  &  Foreign  same  effect,  though  less  express.  Hall 

M(tr.   Ins.    Co.,    Appendix   V.,  /jos^,  v.  Janson  (1855),  4  E.  &  B.  500. 
p.  772. 


SECT.  LXXIV.]       CONTRIBUTING  INTERESTS  AND  VALUES.  371 

by  the  transaction  between  the  parties  [h) ;  otherwise]  a 
payment  on  account  of  freight  will  be  regarded  as 
subject  to  the  same  condition  as  the  freight  itself,  of  not 
being  earned  unless  the  service  undertaken  is  per- 
formed (z).  But  this  intention  to  make  the  prepayment 
absolute  is  most  commonly  shown  upon  i\\Q  charter, 
not  expressly,  but  in  the  way  of  inference  :  and  this  is 
sufficient  for  the  purpose  [k).  If,  for  example,  the  charter 
is  worded  thus  :  ' '  freight  to  be  paid  as  follows  :  cash  for 
the  ship's  port  charges  and  disbursements  abroad  to  be 
advanced  by  the  charterer,  and  the  remainder  of  the  freight 
to  be  paid  on  delivery  of  the  cargo  "  (/)  :  or,  "  cash  to  be 
advanced,  such  advance  to  be  in  part  payment  of  the 
freight "  (m)  :  the  courts  will  infer  from  these  phrases  an 
intention  that  the  prepayment  shall  be  absolute.  A  form 
more  generally  in  use  at  the  present  day  is :  "  cash  to 
be  advanced,  subject  to  insurance,"  or,  "the  shipowner 
to  pay  for  the  insurance."  The  employment  of  this 
phrase  has  the  same  effect.  The  use  of  the  term  "  insur- 
ance "  in  connection  with  the  advance  is  held  to  imply 
that  the  advance  is  of  such  a  nature  as  to  give  an  insur- 
able interest ;  which  it  would  not  be,  were  not  the  char- 
terer to  run  the  risk  of  the  voyage.  The  circumstance 
that  the  shipowner  agrees  to  pay  the  cost  of  the  insurance 
does  not  affect  this  inference ;  such  a  stipulation  being 
regarded  by  the  courts  as  meaning  no  more  than  that  the 
shipowner  allows  to  the  charterer  the  cost  of  the  insur- 

(/j)  See   The.  Karnak  (18G9),  L.  E.  all  tlie  previous   authorities  are  re- 

2  P.  C.  505,  514.  viewed. 

(0  Manfield   v.    MuUland    (1821),  {I)  De   SiJvale  v.    Kendall   (1815), 

4  B.  &  Aid.  582.  4  M.  &  S.  37. 

{k)  See  the  opinion  of  Brett,  J.,  in  (?n)  The  John  (1849),  3  W.  Rob. 

Allison  V.    Bristol   Marine    Ins.    Co.  170. 
(1876),  1  App.  Cas.  209,  215,  in  wliich 

B  B  2 


•'^'^  CONTEIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 

ance,  by  way  of  bonus  or  compensation  for  his  making 
the  advance  (?i). 

Cockbm'n,  C.  J.,  in  one  case,  expressed  his  regret 
that  tlie  law  in  this  respect  should  be  such  as  it  is, 
considering  it  to  be  founded  on  an  erroneous  principle. 
It  would  have  been  better,  in  his  lordship's  judgment,  to 
have  allowed  no  exception  to  the  rule  which  makes  the 
earning  of  freight  conditional  on  the  completion  of  the 
voyage  undertaken.  At  the  same  time,  he  acknowledges 
that  the  rule  is  too  firmly  established  by  a  series  of  pre- 
cedents in  this  country  to  be  now  disturbed  (o). 

Deductions  §  75.  The  Only  question  now  remaining  to  be  con- 

°  '  sidered  is,  what  deductions  should  be  made,  from  the 
contributory  value  of  the  freight,  for  the  expenses  of 
earning  it.  To  this  the  answer  is  clear  on  principle : 
those  expenses  must  be  deducted,  which  are  incurred  for 
the  purpose  of  earning  the  freight,  and  which  would  not 
have  been  incurred  had  the  ship,  instead  of  being  rescued 
from  total  loss  by  the  general  average,  been  at  that  point 
of  time  totally  lost. 

Crew's  wages.  The  wagcs  of  the  crew,  wholly  or  in  part,  come 

under  this  rule.  By  the  common  law  of  England, 
which  in  this  respect  corresponded  to  the  general  mari- 
time law  still  prevailing  in  most  other  countries,  the 
crew,  in  case  of  total  loss  of  the  ship,  were  not  entitled 
to  their  wages  for  the  uncompleted  portion  of  the  voy- 
age :  that  is  to  say,  their  wages  were  only  due  up  to  the 


(h)  Eicks  V.  Shield  (1857),  7  E.  &  (o)  Bijrne  v.  Schiller  (1871),  L.  E. 

B.    633  ;    Fnnjes   v.    Worms   (I860),  6  Ex.  319  ;  in  Exch.  Ch.     As  to  the 

19  C.    B.  (N.  S.)    159 ;    Jackson   v.  law   of    the   United   States  on  this 

/saacso?i  (1858),  3  H.  &  N.  405;   The  subject,    see    Parsons,    Ins.   p.    186 

Karnuh  (1869),  L.  E.  2  P.  C.  5U5  ;  (3rd  edit.). 
The  Red  Sea,  [1896]  P.  20  (C.  A.). 


f 


SECT.  LXXV.]       CONTRIBUTING  INTERESTS  AND  VALUES.  •i<'3 

last  point  at  which  freight  had  been  earned  (j*;).  On  this 
state  of  the  law,  a  total  loss  of  the  ship,  while  inflicting 
on  the  shipowner  a  loss  of  the  freight  to  be  earned, 
relieved  him  of  the  crew's  wages  for  the  whole  voyage, — 
that  is  to  say,  either  from  the  time  when  the  crew  were 
shipped,  or  from  the  time  when  freight  was  last  earned, 
if  the  latter  period  was  subsequent  to  the  former.  This 
amount  of  wages,  therefore,  on  that  state  of  the  law, 
properly  formed  a  deduction  from  the  contributory  value 
of  the  freight. 

This  rule  is  modified,  so  far  as  British-owned  ships 
are  concerned,  by  the  jJi'ovisions  of  the  Merchant  Ship- 
ping Act. 

[The  Act  of  1894  [q)  contains,  in  Part  II.,  the 
following  clauses  {r)  bearing  on  the  subject : — 

§  157. — (1)  "  The  right  to  wages  shall  not  depend  on  the  earning 
of  fi-eight ;  and  every  seaman  and  apjDrentice  who  would 
be  entitled  to  demand  and  recover  any  wages,  if  the  ship  in 
which  he  has  served  had  earned  freight,  shall,  subject  to 
all  other  rules  of  law  and  conditions  applicable  to  the  case, 
be  entitled  to  claim  and  recover  the  same,  notwithstanding 
that  freight  has  not  been  earned.  ..." 

§  158.  "  AVhere  the  service  of  a  seaman  terminates  before  the 
date  contemplated  in  the  agreement,  by  reason  of  the 
wreck  or  loss  of  the  ship,  ....  he  shall  be  entitled  to 
wages  up  to  the  time  of  such  termination,  but  not  for 
any  longer  period." 

( p)  Abbott  on  Shipping,  oth  edit.  possession  in  which  she  is  registered, 
p.  457.  By  sect.  261  they  apply  to  unregis- 
{q)  bl  &  58  Vict.  c.  60.  tared  British  ships  wliich  ought  to 
(r)  By  sect.  260,  these  clauses  apply  have  been  registered  under  the  Act. 
to  aU  sea-going  ships  registered  in  the  The  provisions  of  Part  II.  are  applied 
United  Kingdom;  andby  sect.  261  (d)  by  sect.  263  (2)  to  Scottish  fishing- 
they  apply  to  all  sea-going  British  boats,  and  as  regards  other  fishing- 
ships  registered  out  of  the  United  boats  of  the  United  Kingdom  sect. 
Kingdom,  except  where  the  ship  is  383  (1)  provides  that  wages  shall 
within  the  j  arisdiction  of  the  British  accrue  from  day  to  day. 


374 


CONTRIBUTING  INTERESTS  AND  VALUES.       TCHAP.  VIII. 


Provisions. 


Coal  for 
steamer. 


Port  charj^es. 


Sections  157  (2)  and  174  make  provisions  for  the 
payment  of  the  wages  in  the  case  of  seamen  or  apprentices 
who  die  before  the  wages  are  paid  or  are  lost  with  the 
ship  to  wbicli  they  belong.] 

It  follows  that,  with  regard  to  vessels  which  come 
within  the  provisions  of  the  Act,  it  is  not  right  to  deduct 
from  the  contributory  value  of  the  freight  the  crew's 
wages  for  the  entire  voyage,  but  only  so  much  of  the 
wages  as  would  be  saved  to  the  owner  by  a  total  loss ; 
that  is  to  say,  the  wages  from  the  date  of  the  general 
averao^e  act  to  the  termination  of  the  vovag'e :  and  this 
is  now  the  practice  in  this  country.  The  same  rule 
must  apply  to  ships  of  such  other  countries  as  adopt  the 
modern  English  law  with  regard  to  the  payment  of  the 
crew. 

The  provisions  of  the  crew  are  not  deducted.  The 
reason  given  for  this  in  some  of  the  books  is,  that  the 
provisions  are  included  in  the  insurance  of  the  ship.  A 
better  reason  is,  that  the  j^^ovisions  are  laid  in  before- 
hand, so  that  the  loss  of  the  freight  does  not  relieve  the 
shipowner  from  the  expense  of  provisioning  her  (s). 

For  the  same  reason  the  cost  of  coals  bought  pre- 
viously to  the  general  average  act  is  not  to  be  deducted 
from  the  contributor}^  freight  of  a  steamer. 

Port  charges  and  canal  dues  incurred  subsequently 
to  the  general  average  act,  but  not  those  incurred  pre- 
viously, are,  properly  and  in  practice,  deducted  from  the 
freight.  Under  the  head  of  port  charges  is  included  the 
cost  of  discharging  the  cargo. 


(s)  On  i:)nnciple,  jjiovisions  and 
coals  laid  in  after  the  general  average 
act,  and  consumed  before  the  end 
of  the  voyage,  ought  to  be  treated  as 


l^art  of  the  expenses  of  earning  the 
freight.  There  is,  however,  no  set- 
tled practice  on  this  point. 


SECT.  LXXVI.J       CONTRIBUTING  INTERESTS  AND  VALUES. 


37^ 


8  76.  The  ship,  the  cargo,  ami  the  freight,  constitute,  other  kinds  of 
"^  -  .      contribu ting- 

generally  speaking,  the  whole  of  the  property  on  ship-  interests. 

board  liable  to  contribute  to  general  average  (i).  Should 
there  be  any  kind  of  property,  not  coming  under  any 
of  these  heads,  which  is  preserved  from  destruction  by 
a  general  average  act,  this  likewise  must  contribute, 
unless  there  be  some  special  reason  for  exempting  it  (ii). 
The  lives  which  are  preserved  are  not  brought  into 
account;  by  reason,  it  has  been  said,  of  the  impossi- 
bility of  assessing  them  at  a  pecuniary  value  (:?;).  The 
mariners  are  not  required  to  contribute  in  respect  of 
their  wages  ;  the  reason  given  being,  that  they  are  sup- 
posed to  have  done  their  share  towards  the  ship's  pre- 
servation by  their  personal  efforts  (//}.  The  luggage  and 
personal  effects  of  passengers  and  crew  do  not  contribute  ; 
the  former,  apparently,  for  no  other  reason  than  the  com- 
parative insignificance  of  their  value  (s).  These  are  the 
only  exemptions («).  Everything  which  is  covered  by  an 
ordinary  policy  of  insurance  on  the  ship,  that  is  to  say, 
her  appurtenances  of  every  kind,  including  the  provisions 
laid  in  for  the  voyage  and  unconsumed  at  the  end  of  it, 
is  brought  into  contribution  as  included  in  the  value  of 
the  ship.     If  there  be  anything  else  on  shipboard,  not 

{t)  Concerning  passage-money,  see  (x)  Park,  Ins.  8tli  edit.  p.  293. 

post,  p.  382.  (//)  lb. 

(m)  Government  stores  in  a  trans-  (z)  2  Arn.  Sth.  edit.  p.  936.  But 
port  are  liable  to  general  average.  Arnould  said  that  the  reason  why 
(See  2  Arn.  Sth  edit.  §  973.)  So  passengers'  baggage  had  been  ex- 
determined  in  the  U.  H.  {United  empted  was,  that  it  was  not  put  on 
State>i  V.  Wilder  (1838),  3  Sumner,  board  as  merchandise  (see  infra, 
U.  S.  308.)  But,  as  against  a  p.  377),  although  on  principle  he 
Government,  such  a  right  can  only  thought  that,  if  of  sufficient  value, 
be  enforced  by  means  of  the  ship-  it  ought  to  be  brought  in  to  the 
owner's  possessory  lien.  (See  Va-  contributory  interest. 
vasseur  v.  Krupp  (1878),  9  Ch.  D.  (a)  Magens  says,  "What  pays  no 
351;  The  Farlement  Beige  (1880),  5  freight,  pays  no  average;"  but  this 
P.  D.  197,  215  (C.  A.);  Young  v.  is  plainly  unreasonable,  and  is  now 
S.S.  Scotia,  [1903]  A.  C.  501.)  disregarded  in  practice. 


376 


CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 


constituting'  merchandise  in  the  proper  sense  of  the  word, 
yet  possessing  a  substantial  vahie,  it  ought  to  contribute. 
For  example,  the  unconsumed  stores  of  a  troop  ship,  or 
those  laid  in  by  a  passenger  charterer  (Z*) ;  planks  or 
other  materials  used  as  dunnage,  or  covering-boards,  or 
for  the  construction  of  temporary  bulklieads  for  cargo, 
or  the  like,  should  properly  be  brought  in  as  contri- 
buting. It  is  onl}'  the  small  value  of  such  articles 
which  occasions  their  being,  in  practice,  frequently 
disregarded. 

[The  rule  laid  down  by  Mr.  Lowndes,  that  an 3^  kind 
of  property  saved  by  a  general  average  act  must  con- 
tribute in  the  absence  of  special  reasons  for  exemption, 
is  based  on  the  fundamental  principle  of  general 
average  (<?) ;  but  it  conflicts  with  the  grounds  of  the 
decision  in  Broivn  v.  Stapyleton  {^d\  The  question  in 
that  case  was  wliether  provisions,  and  victualling  stores, 
shipped  by  tlie  defendants  on  a  vessel  which  they  had 
cliartered  for  the  conveyance  of  convicts  to  Australia, 
intended  for  the  use  of  the  convicts,  but  unconsumed  at 
the  time  of  the  general  average  act,  were  liable  to  con- 
tribute. The  Court  of  Common  Pleas  held  that  the  claim 
could  not  be  supported.  "It  is  not,"  said  Best,  C.  J., 
"  every  object  of  value  which  has  been  held  liable  to  a 
contribution  for  average,  but  (^nly  such  stores  as  are 
termed  mcrccs.     Mcrces  lias  never  been  held  to  extend  to 


ih)  Arn.  4tli  edit.  p.  7i)3.  See  also 
Arnould,  6tli  edit.  p.  890;  but  cf. 
Broiun  V.  Stapyletoji  (1827),  4  Bing. 
119;   12  J.  B.  Moore,  .'334,  infra. 

(c)  Magens  (vol.  1,  p.  62)  and 
Stevens  (p.  44)  maintain  that  "  what 
pays  no  freight  pays  no  average"; 
but  the  latter  author  inconsistently 
allows  (p.  45)  that  this  rule  should 
not  be   construed    literallj-;    for    it 


would  be  very  unjust  that  the 
master,  or  owner,  or  any  other  person 
who  had  goods  on  board,  should  not 
contribute,  merely  because  he  pays 
no  freight  for  the  carriage  of  them." 
By  goods  he  means  "  the  wares  or 
cargo  for  sale,  laden  on  board  the 
ship." 

{(/)  (1827),  4  Bing.   119;   12  J.  B. 
Moore,  334. 


II 


SECT.  LXXVI.]       CONTRIBUTING  INTERESTS  AND  VALUES. 


377 


provisions,  but  includes  only  the  cargo  put  on  board  for 
the  purposes  of  commerce  ;  and  the  practice  shows  that 
this  has  been  the  understanding  of  all  times.     Magens, 
Molloy,  Stevens,  and  other  writers,  all  expound  the  word 
'  merces '  in  this  way  ;  all  in  terms  exclude  provisions. 
They  concur  in  saying  that  things  of  light  weight,  but 
of  considerable  value,  must  contribute,  if  they  belong  to 
the  cargo,   but  not  if  they  belong   to    the    passengers. 
Provisions  are  laid  in  for  the  passengers,  and  must  be 
esteemed  to  belong  to  them."     Bingham's  report  of  the 
judgment  of  Park,  J.,  leaves  it  doubtful  whether  the 
learned  judge  agreed  unreservedly   with    the   rule  laid 
down  by  the  Chief  Justice  ;  but  Moore's  report  makes  it 
clear  that  he  assented  to  the  proposition  that  only  goods 
which  are  shipped  as  merchandise  are  liable  to  contribute. 
"  Provisions,"  he   said,    "  have  always  been  held  to  be 
excepted    from    the    rule    of    contribution,    which    only 
applies  to  merchandise  put  on  board  for  the  purpose  of 
traffic.     In  the  term  merchandise  is  included  jewels  and 
articles  of  like  nature,  not  being  the  wearing  apparel  or 
ornaments  of  the  passengers,  but  the  subject  of  traffic  "  [e). 
If   the   doctrine  that   only  goods  put  on  board  as 
merchandise  are  liable  to  contribute  is  accepted  as  the 
rule  of  English  law,  it  follows  that  all  the  effects  of  a 
passenger  are  exempt  ( /") ;  and  the  general   practice  in 
this  countr}"  seems  to  have  been  to  exempt  them  [g). 


[e)  12  J.  B.  Moore,  p.  338.  Pliillips 
(vol.  2,  §  1399)  says  that  the  assump- 
tion in  this  case  that  only  goods 
which  are  merces  contribute,  is  erro- 
neous, or  at  least  very  questionable. 

(/)  See  Abbott,  oth  edit.  p.  356; 
Stevens,  p.  44.  Benecke,  however, 
maintains  (p.  30Sj  that  passengers 
ought  to  contribute  for  their  trunks 
and  luggage,   and  Beawes  (p.    243, 


6th   edit.)   limits   the   exemption   to 
apparel  in  use. 

{(j)  In  a  recent  case,  however, 
where  much  damage  had  been  done 
in  quenching  a  fire  on  board  a  pas- 
senger steamer,  the  general  average 
was  settled  in  the  following  manner  : 
the  passengers'  luggage  was  made  to 
contribute  and  the  damage  to  luggage 
was  allowed  in  general  average ;  but 


378 


CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 


Passengers' 
luggage. 


On  principle  there  does  not  seem  to  be  justification 
for  the  exemption  of  passengers'  effects,  and  even  the 
practical  argument  that  their  value  is  comparatively 
insignificant  has  lost  much  of  its  force  in  these  days  of 
large  passenger  steamers,  when  the  aggregate  value  of 
the  baggage  is  often  considerable,  and  even  the  property 
of  a  single  passenger  may  be  worth  a  large  sum.  It  is, 
however,  apprehended  that  if  passengers'  effects  were  to 
be  held  liable  to  contribution,  the  liability  would  be 
restricted  to  such  effects  as  are  stowed  in  the  baggage 
compartment,  thus  exemj)ting  the  property  which  the 
passenger  retains  in  his  own  care  for  use  on  the  voyage, 
and  which,  in  this  sense,  is  attached  to  his  person  (/«), 
Yet  there  are  practical  objections  even  to  this  limited 
responsibility.  It  must  often  be  difficult,  if  not  impos- 
sible, at  the  time  of  disembarkation  to  obtain  a  proper 
valuation  of  the  effects  of  each  passenger,  to  fix  the 
amount  of  his  contribution,  and  to  enforce  payment  or 
exact  security  for  the  claim  ;  and  after  the  passengers 
have  left  the  ship  and  dispersed,  a  right  of  action  only 
enforceable  by  a  number  of  separate  law-suits,  most  of 
them  for  trifling  amounts,  would  be  an  illusory  remedy. 
Thus  the  right  to  contribution  from  passengers  would  in 
most  cases  probably  resolve  itself  into  a  claim  for 
damages  against  the   shipowner,  for  failing  to   enforce 


the  luggage  which,  was  uninsured  and 
was  not  entitled  to  any  contribution 
was  valued  at  the  lump  sum  of 
10,000?.,  and  its  contribution  was 
paid  by  the  shipowners.  Thus  no 
passenger  was  in  fact  called  upon  to 
pay  a  contribution, 

(A)  In  The  WilUm  HI.  (1871), 
L.  E.  3  A.  &  E.  487,  Sir  Robert 
Phillimore  held  that  the  wearing 
apparel  of  passengers  and  other 
effects  carried  by  them  for  their  daily 


personal  use  were  not  liable  to  pay 
salvage;  and  it  was  admitted  that 
wares  or  merchandise  belonging  to 
them  were  liable  to  contribute. 

Lord  Justice  Kennedy  considers 
(Civil  Salvage,  2nd  edit.  p.  59)  that 
there  is  no  legal  principle  for  the 
exemption,  from  payment  of  salvage, 
of  such  luggage  and  valuables  as  are 
not  in  daily  use  and  are  in  the  custody 
of  the  ship. 


i 


SECT.  LXXVI.]       CONTRIBUTING  INTERESTS  AND  VALUES.  ^79 

the  right  on  behalf  of  the  party  whose  propert}^  has  been 
sacrificed. 

The  question  whether  passengers'  effects  are  liable 
to  contribute  has  never  arisen  in  the  English  courts,  but 
it  was  litigated  in  the  United  States  some  twenty-four 
years  ago,  the  action  being  brought  against  the  shipowners 
by  a  passenger  whose  luggage  had  been  damaged  in 
extinguishing  a  fire  in  the  baggage  compartment,  for 
damages  for  their  failure  to  enforce  the  right  of  contribu- 
tion against  either  the  cargo  or  the  other  passengers' 
baggage  («').  Brown,  D.  J.,  in  a  learned  and  exhaustive 
judgment,  declared  it  to  be  a  universal  rule  that  there 
is  contribution  for  a  sacrifice  of  passengers'  effects. 
Reciprocity,  he  further  says,  is  the  rule  in  general  average; 
but  it  is  not  an  indispensable  part  of  the  principle,  and 
there  may  be  special  reasons  why  a  class  of  articles  that 
share  in  the  cominon  benefit  might  not  be  called  on  to 
contribute,  even  though  they  were  to  be  contributed 
for.  Nevertheless,  he  came  to  the  conclusion  that  the 
passengers'  baggage  is  liable  to  contribute,  with  the 
exception  of  the  apparel  and  other  articles  which  they 
take  with  them  for  use  on  the  voyage.  Even  if  the 
practice  not  to  detain  and  hold  baggage  for  a  general 
average  adjustment  were  so  long  settled  and  acted  on  as 
to  form  an  implied  condition  upon  which  passengers 
embark,  he  maintains  that  it  would  not  relieve  the  pas- 
senger from  the  obligation  to  contribute.  The  editors 
may,  however,  point  out  that  if  there  be  no  lien  on  the 
baggage  for  general  average,  and  the  party  whose 
property  has  been  sacrificed  has  only  a  right  of  action 
against  the  individual  passengers,  he  will  certainly  fail 

(/)  Heyc  V.  North   (lerrmn  Lloyd  {ISSl),  33  Fed.  E.  60;  on  appeal  (1888), 
36  Fed.  E.  705. 


;380 


CONTRIBUTING  INTERESTS  AND  VALUES.       [CHAP.  VIII. 


Jewels  and 

other 

valuables. 


to  obtain  a  contribution  from  many  of  them,  and  his 
position  will  be  worse  than  if  they  w^ere  totally  exempt, 
and  contribution  were  only  levied  upon  the  ship  and 
cargo  {/i). 

Jewels,  precious  stones,  and  other  small  articles  of 
great  value,  if  shipped  as  cargo,  must  contribute  (I). 
When  such  articles  are  brought  on  board  by  a  passenger 
as  part  of  his  effects,  the  extent  to  which  they  are 
exempted  from  contribution  is  variously  stated  by  the 
textwriters  ()n).  If  the  correct  rule  be  that  only  goods 
shipped  as  merchandise  are  liable  to  contribute  {n),  there 
is  no  necessity  to  consider  specially  the  case  of  jewels 
and  other  valuables.  If,  however,  this  be  not  the  rule 
of  English  law,  it  seems  obvious  that  valuables  which 
are  stowed  away  as  part  of  a  passenger's  luggage  ought 
to  be  treated  in  the  same  way  as  his  other  effects  in  the 
baggage  compartment.  Jewellery  and  other  valuables 
which  he  retains  in  his  own  care  for  use  or  ornament 
during  the  voyage  ought,  it  is  submitted,  to  be  exemj^t 
on  the  analogy  of  wearing  ajDparel  in  use.  It  may  be 
uro:ed  mth  some  show  of  reason  that   other  valuables 


(7i)  On  ai:)peal  tlie  onlj-  qiiestion 
raised  was  whether  the  damaged 
baggage  had  to  be  contributed  for, 
and  on  this  point  the  judgment  of 
the  District  Judge  was  unanimously 
affirmed.     (36  Fed.  E.  IQo.) 

(?)  1  Park,  8th  edit.  293 ;  Pders  v. 
MiUigan  (1787),  ib.  296;  per  Park, 
J.,  in  Brown  v.  Stapyleton,  ante, 
p.  377. 

{m)  Beawes  (p.  243,  6th  edit.)  says 
that  money  and  jewels  must  con- 
tribute, and  only  exempts  apparel  in 
use.  On  the  principle  that  what 
pays  no  freight,  pays  no  average, 
Magens  (vol.  1,  p.  62)  and  Stevens 


(p.  44)  exempt  the  jewellery  as  well 
as  the  apparel  of  j)assengers.  Abbott 
(5th  edit.  p.  356)  says  that  jewels  or 
other  things  belonging  to  the  persons 
of  passengers  or  crew,  and  taken  on 
board  for  their  j^rivate  use  and  not  for 
traffic,  do  not  contribute.  Arnould 
(vol.  2,  2nd  edit.  p.  936)  states  that 
all  small  articles  of  value  contribute, 
unless  carried  about  the  person,  or 
forming  part  of  the  wearing  apparel. 
Marshall  (4th  edit.  -p.  432)  exempts 
jewels  or  ornaments  when  belonging 
to  the  persons  of  the  people  on  board. 
(?i)  See  ante,  p.  376. 


SECT.  LXXYI.]        CONTRIBUTING  INTERESTS  AND  VALUES.  'i'^1 

which  the  passenger  keeps  in  his  own  care  ought  to  con- 
tribute, especially  if  he  carries  them  for  purposes  of 
trade.  Yet  the  practice  not  to  exact  contribution  in 
respect  of  valuables  in  the  passenger's  own  care,  partly 
due,  perhaps,  to  the  difficulty  of  ascertaining  their 
existence  without  resort  to  inquisitorial  methods  of  an 
extreme  kind,  may  be  supported  on  the  ground  that  they 
do  not  run  the  same  risks  as  merchandise  or  luggage  in 
the  hold.  For  they  can  usually  be  saved  with  the 
person,  and  therefore  incur  no  greater  danger  than  the 
passengers  themselves. 

Phillips  is  of  opinion  that  bank  notes  ought  not  to 
contribute,  as  they  "  are  not  so  properly  actual  pro- 
perty, to  the  amount  promised  to  be  paid,  as  the  evidence 
of  demands,  which  evidence  may  be  supplied  by  others 
in  case  of  their  being  lost "  (o).  Arnould,  on  the  other 
hand,  following  Weskett,  considered  that  they  ought  to 
contribute,  on  the  ground  that  they  are  convertible  into 
money,  and  are  saved  by  the  sacrifice  from  becoming- 
valueless  (/:>).  It  is  submitted  that  no  instrument  or 
security  ought  to  be  made  to  contribute,  the  loss  of  which 
does  not  necessarily  put  an  end  to  the  obligation  which 
it  creates,  and  if  this  be  the  correct  view  Arnould's  opinion 
cannot  be  sustained  as  regards  obligations  enforceable 
in  this  country.  For  although  at  common  law,  according 
to  the  weight  of  authority,  an  action  could  not  have 
been  maintained  on  a  bill  or  note  which  had  been  lost 
or  destroyed,  relief  could  have  been  obtained  in  equity 
when  there  was  no  remedy  at  common  law  [q) ;  and  now 


[o)  2  Phillips,  §  1397.  7  B.  &  C.  90  ;  jRamuzv.  Crowe  (1S47), 

{]))  2  Arnould,  2ncl  edit.  p.  936;  1  Exch.  167;    Crowe  v.  CIa>/  (1854), 

Weskett,  tit.  Contiib.  No.  1.  9  Exch.  604  ;    Chitty  on  Bills,   11th 

(^f)  Qee  Hansard  V.  Jivlinson  {1821),  edit.  p.  191. 


382 


CONTRIBUTING  INTERESTS  AND  VALUES.       fCHAP.  VIII. 


Mails. 


Passage 
money . 


by  statute  in  an  action  on  a  bill  of  exchange  or  other 
negotiable  instrument  the  defendant  will  be  prevented 
from  setting  up  the  loss  of  the  instrument  if  a  satisfactory 
indemnity  be  given  him  against  other  claims  (r). 

It  is  believed  that  in  practice  articles  carried  under 
a  mail  contract  have  never  been  made  to  contribute.  A 
sufficient  reason  for  the  exemption  of  ordinary  corre- 
spondence is  that  letters  cannot  have  a  definite 
pecuniary  value.  On  principle,  indeed,  there  seems 
to  be  no  reason  why  articles  of  pecuniary  value  carried 
by  post  should  not  contribute,  though  in  practice  it 
would  be  difficult  to  make  a  proper  valuation  of  the 
articles  (s). 

Passage  money,  being  usually  paid  in  advance  and 
not  liable  to  be  refunded  if  the  ship  is  lost,  is  not  made 
to  contribute ;  but  in  cases  where  coolies  or  pilgrims 
were  carried  at  so  much  a  head  payable  on  arrival,  the 
jDassage  money,  said  Mr.  Lowndes,  was  in  English 
practice  made  to  contribute  (/).J 


(r)  Common  Law  Procedui'e  Act, 
1854  (17  &  18  Vict.  c.  125),  s.  87  ; 
Bills  of  Exchange  Act,  1882,  ss.  70, 
89;  J^h/g  v.  Zimmerman  (1871), 
L.  E.  6  C.  P.  466.  See  also  sect.  69 
of  the  latter  Act. 

(s)  In  one  case,  the  editors  have 
been  informed,  the  postal  authorities 


in  South  Africa,  fearing  that  a  claim 
for  general  average  made  by  the  ship- 
owners might  be  pressed,  exacted  de- 
posits from  the  receivers  of  registered 
parcels  ;  but  the  shipowners  did  not 
pursue  the  claims  further. 

{t)  Lowndes,  4th  ed.,  Apijendix  0., 
p.  636. 


883 


CHAPTER  IX. 

LIEN  FOR  GENERAL  AVERAGE,  AND  LEGAL  REMEDIES. 

SECT.  P^«^ 

77.  Shipoicner's  common  law  right  of  lien 384 

78.  Statutory  additions    387 

79.  Remedies  of  carffo-owner 389 

Crooks  V.  Allan     391 

80.  The  average  agreement 395 

Huth  V.  Lamport 397 

80a.    Underwriters^  guarantee 40-- 

81.  Admiralty  and  County  Court  jurisdiction 404 

Admiralty  Amendment  Act,  1861 406 

County  Court  Admiralty  Act 409 


Having  thus  enumerated  the  several  losses  or  expenses 
that  constitute  general  average,  and  pointed  out  in 
what  manner  each  kind  is  to  be  computed,  and  over 
what  interests  and  in  what  proportions  the  burden  is 
to  be  distributed,  there  remain  only  two  incidental  topics, 
which  must  occupy  the  following  chapter.  The  first  is, 
the  machinery  w^hich  exists  in  this  country  for  enforcing 
claims  for  general  average. 

The  subject  of  legal  machinery  may  conveniently 
be  subdivided  as  follows  : — In  the  first  place  is  to  be  con- 
sidered what  remedies  are  given  at  common  law,  and  in 
particular  what  is  the  legal  efficacy  of  the  shipowner's 
right  of  lien,  whether  as  it  exists  independently  of,  or  as 
it  has  been  extended  by,  Acts  of  Parliament  ;  and, 
secondly,  what  are  the  remedies  of  the  owners  of  cargo 
against  the  shipowner. 


384 


LIEN  FOR  GENERAL  AVP:RAGE,  [cHAP.  IX. 


Remedies  of 
shipowner. 

Lien  for 

general 

averaare. 


SECTION  1.— COMMON  LAW  BIGHT  OF  LIEN. 

§  77.  Under  ordinary  circumstances,  the  proper 
tribunal  for  determining  a  disputed  claim  for  general 
average  is  a  Court  of  Common  Law.  This,  which 
appears  to  have  been  formerly  doubted,  it  having  been 
thought  that  questions  of  contribution  more  properly  fell 
within  the  province  of  the  Courts  of  Chancery  (a),  was 
expressly  determined  in  BirJclej/  v.  Presgrave  (/;),  and  has 
ever  since  been  acted  on. 

The  shipowner  has,  at  common  law,  a  lien  on  the 
cargo  while  in  his  possession  or  in  that  of  his  servants  as 
a  carrier,  not  only  for  the  freight,  but  also  for  the  cargo's 
share  of  general  average  [c). 

This  right  of  lien  would  entitle  the  shipowner  to 
insist  on  payment  of  the  general  average  by  the  con- 
signees before  delivery  of  their  goods,  were  he  at  that 


(«)  Sheppard  v.  Wright  (1698), 
Show.  P.  C.  18. 

(6)  (1801),  1  East,  220. 

(c)  "  It  is  a  possessory  lien  at  com- 
mon law,  by  virtue  of  wliich.  he  [the 
master  or  owner  of  the  ship]  is  en- 
titled to  hold  the  goods  till  his  lien 
be  satisfied."  (Per  Lord  Kings- 
down,  in  Cargo  ex  Galam  (1863), 
Br.  &  L.  167,  182.)  The  same  lien 
which  the  master  has  for  general 
average,  he  has  likewise  for  special 
or  particular  charges  on  cargo  in- 
curred during  the  transit.  {Hingston 
V.  Wendt  (1876),  L.  E.  1  Q.  B.  D. 
367.)  By  the  Eules  of  the  Supreme 
Court,  it  is  provided  (Order  50, 
Eule  8)  that  "  Where  an  action  is 
brought  to  recover,  or  a  defendant 
in  his  defence  seeks  by  way  of 
counter-claim  to  recover,  specific 
property  other  than  land,  and  the 
l^arty  from  whom  such  recovery  is 


sought  does  not  disi>ute  the  title  of 
the  party  seeking  to  recover  the  same, 
but  claims  to  retain  the  property  by 
virtue  of  a  lien  or  otherwise  as  secu- 
rity for  any  sum  of  money,  the  court 
or  a  judge  may,  at  any  time  after 
such  last-mentioned  claim  appears 
from  the  pleadings,  or,  if  thei'e  be 
no  pleadings,  by  affidavit  or  other- 
wise to  the  satisfaction  of  such  court 
or  judge,  order  that  the  party  claim- 
ing to  recover  the  property  be  at 
liberty  to  pay  into  court,  to  abide  the 
event  of  the  action,  the  amount  of 
money  in  respect  of  which  the  lien 
or  security  is  claimed,  and  such 
further  sum  (if  any)  for  interest  and 
costs  as  such  court  or  judge  may 
direct,  and  that  upon  such  payment 
into  court  being  made,  the  propertj- 
claimed  be  given  up  to  the  party 
claiming  it." 


SECT.  LXXVII.]  AND  LEGAL  REMEDIES. 


385 


as  the   conditions   oi  Mode  of 

enforciiior  it. 


point  of  time  in  a  position  to  state  the  amount  of  his 
claim.  This,  however,  is  seklom  or  never  the  case,  since 
the  amomit  of  contribution  depends  upon  the  vakie  of  the 
goods,  which  usually  cannot  be  ascertained  until  they 
have  been  landed,  and  their  condition  examined.  Prac- 
tically, therefore,  this  right  of  lien  can  only  be  used  as  a 
means  for  enforcing  the  giving  of  satisfactory  security  or 
other  equivalents  for  a  payment  before  delivery  (c?). 

The  terms  usually  required^ 
delivery,  are,  that  the  consignees  shall  either  sign  an 
agreement  to  pay  their  shares  of  the  general  average, 
according  to  the  adjustment  of  a  j)erson  named,  or  that 
thev  shall  pay  by  way  of  deposit  a  sum  sufficient  to  cover 
the  amount  of  their  liability  when  ascertained  {e). 

Against  the  abuse  of  the  power  thus  given  to  the  Limitations 
shipowner,  the  English  common  law  provides  the  follow- 
ing safeguards : — 

In  the  first  place,  the  consignee  of  goods  can  always 
obtain  a  right  to  the  delivery  of  his  goods,  and,  conse- 
quently, a  right  of  action  for  damages,  if  they  are  not 
delivered,  by  tendering  to  the  shipowner  or  captain  a 
sum  sufficient  to  meet  his  rightful  demand.  The  duty  of 
determining  the  amount  to  be  tendered  is  thus  practically 
cast  upon  the  consignee ;  unless  indeed  the  shipowner  or 
master  shall  have  made  his  demand  for  a  deposit  in  such 
a  manner  as  to  imply  a  resolution  on  his  part  to  take  no 
smaller  sum ;  which  conduct  on  his  part,  it  seems,  mav 


('/)  The  enforcement  of  this  lieu 
is  rendered  the  more  necessary  for  a 
shipowner  from  the  circumstance  that 
a  mere  consignee  of  cargo,  not  being 
the  owner,  is  not  liable  for  general 
average.  {Scaife  v.  Tobin  (1832), 
3  B.  &  Ad.  523.)  But  one  who  is 
not  the  owner  of  the  goods  may  by 
contract  be  liable  to  pay  the  contri- 

L. 


bution,  e.(j.,  the  shippers  under  the 
terms  of  the  bill  of  lading  in  Walfovd 
de  BaeriJemftcckcr  v.  Galindez  (1897), 
2  Com.  Cas.  137. 

(e)  It  is  now  the  usual  practice  to 
require  consignees  to  sign  an  average 
bond  in  all  cases,  whether  a  cash 
deposit  be  demanded  in  addition  or 
not. 

c  c 


386 


LIEN  FOR  GENERAL  AVERAGE, 


[chap.  IX. 


amount  to  the  waiver  of  a  tender,  and  excuse  the  con- 
signee for  not  making  it  (  /'). 

Secondly,  although  the  consignee  whose  goods  have 
been  jettisoned  or  sold  abroad  has,  at  common  law,  no 
security  against  the  ship  corresponding  to  the  shipowner's 
right  of  lien,  yet  if  the  shij)owner  exerts  his  right  of  lien 
to  enforce  from  the  former  a  deposit  for  general  average, 
he  is  bound  to  set  against  the  sum  he  demands,  and  place 
to  the  credit  of  the  consignee,  the  amount  of  any  claim 
which  the  latter  may  rightfully  have  upon  the  ship,  in 
respect  of  a  jettison  or  sale  of  goods  [g). 

Thirdly,  at  common  law^,  and  except  so  far  as  this 
rule  has  been  modified  by  statute,  the  shipowner  who 
enforces  a  right  of  lien  must  do  so  at  his  own  expense  (/^). 
If  he  w^ere  to  land  and  store  the  goods,  or  deposit  them 
with  a  wharfinger,  his  position  at  common  law  was,  that, 
even  if  he  did  not  by  such  an  act  lose  that  possession  of  the 
goods  on  which  his  right  of  lien  depended,  at  any  rate 


(/)  As  to  the  law  witli  regard  to 
the  making  of  tenders  in  cases  of 
disputed  liability,  see  Scarfe  v.  Mor- 
gan (18:38),  4  M.  &  W.  270;  AUev  v. 
Smith  (18G2),  12  C.  B.  (N.  S.)  638, 
affirmed  (1863),  9  Jur.  (N.  S.)  1284 
(Ex.  Ch.) ;  Ashmole  v.  Wainwrifjht 
(1842),  2  Q.  B.  837  ;  Nicholson  v. 
Chapraan  (1793),  2  H.  Bl.  254  ; 
Kerjord  v.  Mondel  (1859),  28  L.  J. 
Exch.  303  ;  The  Norwmj,  in  P.  C. 
(1865),  Br.  &  L.  404,  see  pp.  410— 
411  ;  per  Lord  Blackburn  in  Ander- 
son V.  Ocean  S.S.  Co.  (1884),  10 
App.  Cas.  107,  115;  J/uth  v.  Lamport, 
infra,  p.  397. 

((/)  The  Norivay,  in  P.  C.  (1865), 
Br.  &L.  410,  411. 

(/()  Mr.  Lowndes  added: — "If  he 
retains  the  goods  on  board  his  ship, 
he  can  claim  no  demurrage  during 
the  delay."     It  is,  however,   argu- 


able, consistently  with  the  decision 
in  Somes  v.  British  Empire  Shippincf 
Co.,  infra,  that  if  the  contract  itself 
pro^ddes  that  a  payment  shall  be 
made  to  the  shipowner  for  the  time 
during  which  the  goods  remain  on 
board,  he  is  entitled  to  payment  for 
the  whole  time,  although  it  has  been 
prolonged  by  his  enforcing  a  lien 
properly  exercised  against  the  goods, 
provided,  no  doubt,  that  he  acted 
reasonably  in  keeping  the  cargo  on 
board  to  preserve  his  lien.  There 
is  authority  for  such  a  rule  in  the  case 
of  the  contract  freight.  (See  Carver, 
§  683  ;  Moeller  v.  Young  (1855),  5  E. 
&  B.  7,  reversed  on  another  point, 
ib.  755;  Mors  Le  Blanch  v.  Wilson 
(1873),  L.  E.  8  C.  P.  227;  Smailes 
v.  Hans  Dessen  &  Co.,  infra,  p.  388, 
n.  (/).) 


SECT.  LXXVIII.]  AND  LEGAL  KEMEDIES.  387 

the  expense  he  was  put  to  in  storing  and  retaining  the 
goods  could  not  be  recovered  from  the  consignee  (/). 

S  78.  This    state    of   the   law  was   altered    by  the  statutory^ 

•^  ^  extension  of  ] , 

Merchant    Shipping   Act,    1862(7;;),    which  gave  to  the  the  lien.  *_. 
masters  and  owners  of  ships  extensive  powers  of  enforcing 
a  lien,  whether  for  freight  or  other  charges,  by  landing 
and  warehousing  the  goods,  or  depositing  them  with  a 
wharfinger,  for  this  special  purpose. 

The  sections  of  this  Act  which  created  these  powers 
have  been  re-enacted  in  sects.  493 — 501  of  the  Merchant 
Shipping  Act,  1894,  which  provide  that,  at  the  time 
when  any  goods  are  landed  from  any  ship,  and  placed 
in  the  custody  of  any  person  as  wharf  or  warehouse 
owner,  the  shipowner  may  give  notice  in  writing  to  the 
wharf  or  warehouse  owner,  requiring  him  to  retain  the 
goods  subject  to  the  claim  for  freight  or  other  charges ; 
which  notice  tlie  wharf  or  warehouse  owner  is  bound  to 
act  upon,  under  the  penalty  of  being  himself  liable  for 
any  loss  resulting  from  his  omission.  When  such  a 
notice  has  been  served,  the  owner  of  the  goods  can  only 
obtain  delivery  by  depositing  with  the  warehouse  owner 
a  sum  equal  to  that  demanded.  This  deposit  is  to  be 
paid  over  to  the  shipowner  in  satisfaction  of  his  claim, 
unless,  within  fifteen  davs  after  makino:  it,  the  consi":nee 


('/)  See  Somes  v.  British  Empire 
Shipping  Co.  (1858-00),  Ell.  Bl.  & 
Ell.  353,  367  (Ex.  Ch.)  ;  8  H.  L. 
Cas.  338.  At  common  law,  the  riglit 
of  lien  does  not  in  general  carry 
with  it  a  right  to  sell  the  articles 
retained.  [Thames  Iromuorks  Co.  v. 
The  Patent  Derrick  Co.  (1860),  1 
J.  &  H.  93.)  It  would  seem  that 
in  some  cases,  if  the  consignee  re- 
fuses to  take  delivery  of  the  goods 
or  to   satisfy   the   lien   on   them,    a 


master  might  be  justified  in  carrj-ing 
the  goods  back  to  the  port  of  ship- 
ment, and  there  enforcing  his  lien 
against  the  shipper  ;  on  the  princijile 
that  one  who  has  a  lien  on  goods  may 
do  what  is  reasonable  to  enforce  it, 
and  if  he  cannot  do  so  on  the  spot 
without  incurring  exjiense,  may  carry 
the  goods  to  some  place  where  he 
can.  {Edivards  v.  Southgate  (1862), 
10  W.  E.  528.) 

(A)  25  &  26  Yict.  c.  63,  ss.  68-78. 


cc2 


LIEN  FOR  GENERAL  AVERAGE,  fCHAP.  IX. 

or  representative  of  the  cargo  shall  give  to  the  warehouse 
owner  notice  in  writing  to  retain  either  the  whole,  or 
such  portion  as  he  asserts  to  be  in  excess  of  his  admitted 
liability.  After  receiving  such  a  notice,  the  warehouse 
owner  is  at  once  to  communicate  it  to  the  shipowner, 
who  must  then,  within  thirty  days,  institute  proceedings 
to  enforce  his  disputed  claim ;  or  else  the  deposit,  or 
that  portion  of  it  which  is  not  admitted  to  be  due,  is  to 
be  returned  by  the  w^arehouse  owner  to  the  party  who 
made  it.  And  it  is  specially  provided  in  the  Act  that 
the  warehouse  rent  and  the  expenses  of  the  wharfinger, 
while  the  goods  are  detained  under  this  right  of  lion, 
shall  be  a  charge  upon  the  goods  (/). 

If  the  consignee  of  the  goods  shall  make  no  deposit, 
the  warehouseman  or  wharfinger  is  to  detain  the  goods 
for  ninety  days,  and  at  the  expiration  of  that  time  (or 
sooner,  if  the  goods  are  perishable),  is  to  sell  them,  and 
to  applv  the  proceeds,  first  in  payment  of  his  own. 
charges,  and  secondly  in  satisfaction  of  the  shipowner's 
lien,  after  which  the  balance  is  to  be  returned  to  the 
consignee  (m). 


(/)  As  to  tlie  working  of  the  ware- 
housing provisions  of  this  Act,  see 
Miedhrodt  v.  Fit?:simon  (1875),  L.  E.. 
6  P.  C.  306 ;  Smailes  v.  Hans  JDessen 
&  Co.  (1905-6),  11  Com.  Cas.  74  ;  12 
Com.  Cas.  117  (C.  A.).  In  the  latter 
case  the  Court  of  Appeal  held  that 
the  master  had,  under  the  circum- 
stances of  the  case,  acted  I'easonably 
in  keeping  the  ship  on  demurrage 
to  detain  the  goods  on  board  under 
his  lien  for  freight,  instead  of  ware- 
housing them.  Channell,  J.,  had 
held  that  he  was  not  entitled  to  land 
them  until  the  demurrage  days  had 
expired,  but  the  Court  of  Appeal 
refi'ained  from  deciding  this  point. 


(m)  So  far  as  Liverpool  is  con- 
cerned, there  is  a  local  Act  (Mersey 
Docks  Consolidation  Act,  1858), 
which  slightly  varies  the  operation 
of  this  genei-al  Act,  by  2iro\T.ding 
that,  ■  as  regards  cargo  landed  in 
warehouses  under  the  control  of  the 
Mersey  Docks  and  Harbour  Board, 
unless  an  action  at  law  be  commenced 
within  the  thii'ty  days  after  notice 
given,  the  deposit  shall  be  paid  over, 
not,  as  under  the  general  Act,  to  the 
owner  of  the  goods,  but  to  the  ship- 
owner (§§  193-199).  In  other  re- 
spects, the  provisions  of  the  Mersey 
Docks  Act  are  identical  with  those  set 
forth  above.     (See  Appendix  AA. ,  in 


SECT.  LXXIX.]  AND  LEGAL  REMEDIES. 


389 


§  79.  Such  are  the  remedies  available  l)y  the  owner  Remedies  of 

p  1  •  ('        1   i>  n     •  1.   cargo-owner 

of  the  ship.  1  he  owner  oi  goods  sacrmcecl  lor  all,  is  not  in  case  of 
in  so  advantageous  a  position  ;  simply  because,  not  being  ""^ 
in  possession  like  the  shipowner,  he  can  have  no  right  of 
lien.  He  has  at  common  law  a  right  of  personal  action 
against  the  shipowner  for  his  share,  and  against  the  other 
owners  of  cargo  for  theirs  (w).  It  was  formerly  doubted 
whether  he  had  the  right,  as  in  some  countries,  to  proceed 
against  the  shipowner  in  the  first  instance  for  the  entire 


which  both  Acts,  so  far  as  they 
bear  on  this  subject,  are  given  at 
large. ) 

(n)  Dohson  v.  Wilson,  (1813),  3 
Camp.  480.  Mr.  Carver  raises  the 
question  whether,  if  the  property  in 
the  goods  is  transferred  dui-ing  the 
voyage,  the  owner  who  is  Kable  to 
pay  the  contribution  is  the  owner  at 
the  time  of  the  general  average  loss, 
or  the  owner  at  the  time  when  the 
goods  reach  theii'  destination.  (See 
Carver,  §  443.)  The  question  is  one 
of  little  practical  importance,  not 
only  because  the  consignee  of  the 
goods  is  usually  compelled  to  make 
himself  liable  to  pay  the  contribu- 
tion in  order  to  obtain  delivery  of 
the  goods,  but  also  because  they  are 
u.sually  insured,  and,  as  a  rule,  when 
they  are  sold  while  at  sea  the  benefit 
of  the  insurance  is  assigned  to  the 
purchaser.  In Scaifey.  To&iVt  (1832), 
3  B.  (t  Ad.  523,  as  Mr.  Carver  points 
out.  Lord  Tenterden  said  that  "A 
consignee,  who  is  the  absolute  owner 
of  the  goods,  is  liable  to  pay  general 
average,  because  the  law  throws 
upon  him  that  liability."  But,  as 
Mr.  Carver  admits,  it  does  not  appear 
whether  this  dictum  was  intended  to 
apply  to  a  consignee  who  had  become 
owner  after  the  general  average  loss 
had  been  incui-red ;  and  Parke,  B., 
observed  in  the  course  of  the  argu- 


ment that  ' '  the  plaintiff  was  bound 
to  show  that  the  defendant  was  an 
owner  at  the  time  .when  the  general 
average  accrued."  Mr.  Carver  sug- 
gests that  the  true  view  may  be  that 
the  liability  is  only  inchoate,  and 
does  not  definitely  attach  until  the 
goods  have  arrived  at  the  destination, 
or  other  place  where  the  voyage  is 
terminated.  The  editors  submit, 
however,  that  the  person  liable  to 
pay  is  he  for  the  preservation  of 
whose  property  the  loss  was  incurred, 
i.e.,  the  owner  at  the  time  of  the 
loss.  This  view  agrees  best  with 
the  various  doctrines  which  have 
been  promulgated  with  reference  to 
the  basis  of  general  average  (see 
anti',  §  3) ;  and  there  is  no  legal 
difficulty  in  annexing  to  the  rule  the 
qualification  that  in  cases  of  sacrifice 
the  safe  arrival  of  the  goods  is  a 
condition  precedent  to  the  enforce- 
ment of  the  liability.  Moreover,  if 
as  regards  expenditures  the  correct 
view  is  that  all  the  property  must 
contribute  which  was  at  risk  at  the 
time  when  the  expenditure  was  in- 
curred, whether  afterwards  lost  or 
not,  the  doctrine  that  the  liability  is 
only  inchoate  at  the  time  of  the  loss 
can  only  be  maintained  by  treating 
this,  perhaps  the  most  important,  class 
of  general  average  losses  as  an  ex- 
ception to  the  general  rule. 


390  LIEN  FOR  GENERAL  AVERAGE,  [CHAP.  IX. 

value  of  the  goods  short  delivered,  leaving  the  latter  to 
collect  the  general  average  from  each  contributor  ;  and  it 
was  supposed  that  to  such  an  action  it  would  be  a  sufficient 
defence,  that  the  jettison  or  similar  sacrifice  was  occa- 
sioned by  the  dangers  of  navigation. 

As  a  matter  of  convenience,  however,  the  shipowner, 
who  has  it  in  his  jiower  to  take  security  for  the  general 
average  before  parting  with  the  cargo,  and  who,  in  most 
cases  of  jettison,  is  himself  a  claimant  in  respect  of  the 
loss  of  freight  resulting  from  it,  usually  deals  with  the 
entire  claim,  acting  as  receiver  and  distributor  on  behalf 
of  all.  Any.  other  arrangement  would  lead  to  great 
complications,  and  could  hardly  be  carried  out  in  practice. 
We  have  to  consider,  then,  to  what  extent  the  shipowner 
is  by  law  empowered  or  bound  so  to  act. 
Shipowner  The  first  case  in  which  this  question  directly  came 

empowered  ^  -^ 

totakesecu-    boforc   the   courts  was   that  of  Hallett  v.   Bousfield.   in 

nty  for  jet- 

tison.  1811  (o). 

The  owner  of  a  quantity  of  bark,  which  had  been 
jettisoned  to  save  the  ship   Ocean  and  her  cargo,  moved 
for  an  injunction  in  the  Court  of   Chancery  to  restrain 
the  master  and  shipowner  from  delivering  any  j3art  of 
the  cargo,  and  receiving  the  freight,  or  joarting  with  any 
share  of  the  ship  ;  he  insisting  on  a  lien  for  contributitm. 
In  support  of  this  motion  it  was  argued  that  the  general 
commercial  law  binds  the  shipowner  before  delivering 
the  cargo  to  the  consignees,  to  take  security  from  them 
for  their  shares  of  the  general  average,  and  to  provide 
for  the  adjustment   at   a  future  time  by  an  equal   con- 
tribution.     The    usage    of   Lloyd's   was    also    cited,   as 
requiring   the    owner   to    insist    on    the    signing   of   an 
average-bond   before    jjarting    with   the   goods.      Lord 
Eldon,   however,   refused  to   grant   an  injunction.     No 

{»)  18  Ves.  187. 


391 


SECT.  LXXIX.]  AND  LEGAL  REMEDIES. 

principle,  he  said,  would  justify  the  administration  of 
law  and  equity  according  to  the  usage  of  Lloyd's 
Coffee-house.  "  It  seems  to  me,"  added  the  learned 
judge,  "  that  in  such  case  there  is  a  lien  upon  the  goods 
of  each  freighter  for  contribution  and  average  in  some 
sense  :  that  is,  the  master  is  not  bound  to  part  with 
any  of  the  cargo,  until  he  has  security  from  each 
[consignee]  for  his  proportion  of  the  loss;  but  there 
is  no  authority  that,  on  the  ground  that  he  has  a  lien  to 
the  extent  of  entitling  him  to  call  on  every  person  to 
give  security  for  the  amount  of  their  average  when  it 
shall  be  adjusted,  every  owner  of  a  part  of  the  cargo 
can  compel  the  captain  to  do  so"  [p). 

In  Crooks  v.  Allan  {a),  in  1879,  a  successful  attempt  Dutyof  ship- 

-' ^  owner  to  take 

was   made  to  put  this  matter    on   a   more   satisfactory  security  for 

.  ,   benefit  of 

basis.  A  general  cargo  was  shipped  irom  ijiverpool  cargo-owners. 
under  through  bills  of  lading  for  Toronto,  to  be  carried  3jJ^„*  ^• 
as  far  as  Montreal  by  the  steamer  Sardinian,  belonging 
to  the  defendants,  under  a  bill  of  lading,  by  which  the 
defendants  undertook  to  deliver  the  goods  at  Montreal 
to  the  Grand  Trunk  Railway  there  in  the  usual  manner, 
but  on  certain  conditions,  amongst  which  was  the  fol- 
lowing clause: — ''The  shipowner  or  railway  company 
are  not  to  be  liable  for  any  damage  to  any  goods  which 
is  capable  of  being  covered  by  insurance."  These  words 
formed  part  of  a  very  long  list  of  exceptions  and  condi- 
tions, all  printed  in  such  very  small  type  as,  in  the 
language  of  Lush,  J.,  who  tried  the  case,  "not  only  not 

[p]  In  coiiimeutiiig  on  this  case  in  that  a  master  might  not  be  restrained 

Strang  v.  Scott  (1889),  14  App.  Cas.  from  making  delivery  of  the  cargo, 

601,  Lord  Watson  observed  (p.  607) :  at  the  instance  of  all  or  most  of  those 

"  Courts    of    equity    are    chary    of  entitled     to     contribution,     mthout 

granting  injunctions  which  may  lead  taking  security  for  theii-  claims." 
to  inconvenient  results;  and  it  does  (</)  5  Q.  B.  D.  38;  49 L.  J.  (Q.  B.) 

not  follow  from  Hallett  v.  Bousfield  2(11. 


392  LIEN  FOR  GENERAL  AVERAGE,  [CHAP.  IX. 

to  attract  attention  to  any  of  the  details,  but  to  be  only 
readable  by  persons  of  good  eyesight, "  The  clause  in 
question  came  in  about  the  middle  of  thirty  closely 
packed  small  type  lines,  without  a  break  sufficient  to 
attract  notice.  It  is  true  that  at  the  end  of  these  thirty 
lines  it  Avas  added:  "In  accepting  this  bill  of  lading, 
the  shipper,  or  other  agent  of  the  owner  of  the  property 
carried,  expressly  accepts  and  agrees  to  all  its  stipula- 
tions, exceptions,  and  conditions,  whether  written  or 
printed."  But  it  was  not  proved,  as  under  these  circum- 
stances the  learned  judge  thought  it  ought  to  have  been, 
that  the  special  clauses  in  question  had  been  brought  to 
the  notice  of  the  shippers,  or  read  to  them  before  they 
accepted  the  bill  of  lading. 

The  Sardinian^  after  sailing,  took  fire  at  sea,  which 
made  it  necessary,  in  order  to  protect  the  whole  from 
destruction,  to  flood  the  cargo  with  water,  thus  occasion- 
ing a  general  average  loss  to  the  plaintiff's  goods.  The 
ship  returned  to  Liverpool,  and  there  the  shipowners, 
conceiving  they  were  not  liable  for  the  damage  to  the 
cargo,  and  not  proposing  themselves  to  make  any  claim 
upon  the  cargo,  took  no  steps  as  to  collecting  a  general 
average,  but  simply  discharged  the  damaged  cargo,  and 
handed  it  over  to  the  Liverpool  Salvage  Association  (r), 
to  be  distributed  and  disposed  of  as  might  be  most  for 
the  benefit  of  the  parties  concerned. 

The  plaintiff,  one  of  the  shippers,  whose  goods  had 
thus  been  damaged,  was  not  satisfied  with  the  course 
adopted    by    the    shipowners,    and    brought    an    action 

(r)  An  association,  formed  by  the  perty  saved  to  the  best  advantage, 

underwriters  of  this  city,  to  organize  sending  out  agents  to  ships  in  dis- 

a  system  of  concerted  action  in  case  tress,  and  in  other  analogous  methods, 

of  wreck  or  maritime  disaster,  so  as  There  is  another  similar  institution 

to  minimize   the  loss  by  providing  in  London, 
machinery  for  disjiosing  of  the  pro- 


SECT.  LXXIX.J  AND  LEGAL  REMEDIES. 

against  them  in  the  Queen's  Bench  Division.  The 
complaint  made  was,  "  that  the  shipowners  refused  to 
give  any  assistance  to  enable  either  the  association,  or 
the  underwriters,  or  the  persons  whose  goods  were  so 
damaged,  to  get  an  average  statement  made  out,  or  to 
take  any  steps  to  enable  the  plaintiffs  to  recover  contri- 
bution. They  delivered  up  the  cargo  without  taking 
the  usual  security  from  any  of  the  owners  of  cargo,  and 
the  plaintiffs  were  not  only  witliout  the  benefit  of  such 
security,  but  without  the  means  of  ascertaining  in  what 
proportions  the  several  cargo-owners  were  liable  to  con- 
tribute, or  even  who,  besides  the  defendants,  were  the 
contributing  parties  [s). 

The  case  was  tried  at  the  Liverpool  Assizes,  before 
Lush,  J.,  by  whom  it  was  reserved  for  further  considera- 
tion. It  was  re-argued  before  his  lordship  in  London  in 
the  Queen's  Bench  Division,  and  judgment  given  for  the 
plaintiffs. 

The  learned  judge,  in  the  first  place,  dealt  with  the 
question  of  the  shipowner's  liability  to  contribute,  not- 
withstanding the  clause  above  referred  to  ;  which  he 
affirmed  on  the  authority  of  ySchmidt  v.  Royal  Mail  S.S. 
Co.,  and  on  virtually  the  same  grounds  (/). 

"  The  next  question  is,"  his  lordship  continued,  "  whether  a  ship- 
owner is  bound  to  exercise  the  power  he  is  invested  with,  when  a 
general  average  loss  has  arisan,  and  to  afford  the  means  in  his  power 
lor  adjusting  the  general  average  claims  and  liabilities,  and  secure 
their  payment  to  the  parties  entitled.  It  seems  strange  that  such  a 
point  has  not  been  formally  decided  in  this  country.  It  has  been 
decided  in  America  in  favour  of  the  shipper.     I  am  not  aware  that  it 


(s)  (1879),  5  Q.  B.  D.,  at  jj.  39.  and  this  was  held  not  suflBcient  to 

(t)  (1876),  45  L.  J.   (Q,.  B.)  646.  exempt  the   ship   and  freight  from 

In  this    case    the  woirls    relied   on  contribution   to   a    general    average 

exempted  the  ship  from  liability  from  resulting  from  the  measures  taken  to 

' '  fire  and  the  consequences  thereof ; "  extinguish  a  fire. 


393 


394 


LIEN  FOR  GENERAL  AVERAGE, 


L 


CHAP.  IX. 


has  ever  been  judicially  questioned  here,  and  I  can  only  account  for 
the  absence  of  direct  authority  by  supposing  that  the  universal  practice 
has  been  accepted  as  proof  of  the  obligation.  It  is  clear  that  the  ship- 
owner has  a  lien  for  general  average  on  the  whole  of  the  cargo  liable 
to  contribution,  and  can  require,  before  he  parts  with  it,  security  for 
its  due  payment.  In  early  times  the  master,  when  he  had  jettisoned 
part  of  the  cargo  to  save  the  whole  adventure,  took  and  rendered 
contribution  in  kind.  The  ordinary  course  now  is,  and  has  been  for  a 
ver}^  long  time,  for  the  shipowner  to  require  before  he  delivers  the 
cargo,  an  average  bond  or  agreement  for  the  payment  of  what  shall  be 
found  due  from  each  shipper  for  his  proportion  of  the  loss.  He  is  the 
only  person  who  has  the  power  to  require  this  security. 

"  The  right  to  detain  for  average  contribution  is  derived  from  the 
civil  law,  which  also  imposes  on  the  master  of  the  ship  the  duty  of 
having  the  contribution  settled,  and  of  collecting  the  amount,  and  the 
usage  has  always  been  substantially  in  accordance  with  this  law,  and 
has  become  part  of  the  common  law  of  the  land. 

"  I  am  therefore  of  opinion,  first,  that  the  bill  of  lading  does  not 
exempt  the  shipowner  from  contribution  to  a  general  average  loss,  and, 
secondly,  that  he  is  liable  to  this  action  for  not  having  taken  the 
necessary  steps  for  procuring  an  adjustment  of  the  general  average 
and  securing  its  payment.  This  is  all  which  I  am  required  to  decide, 
and  my  judgment  will  therefore  be  entered  for  the  plaintiffs  with 
costs  "  {u). 

As  a  result  of  this  decision,  I  am  in  a  position  to 
state  that  the  shipowners  collected  and  gave  the  requi- 
site information,  and  caused  an  adjustment  of  general 
average  to  be  drawn  up,  which  was  settled  by  all  parties 
concerned,  including  the  shipowners  and  their  under- 
writers, without  further  question  (x). 


[u)  5  Q.  B.  D.  38,  at  p.  4L 
(»)  The  rule  laid  down  in  this  de- 
cision, that  it  is  the  duty  of  the 
master  to  enforce  the  lien  for  a 
general  average  contribution  against 
each  pai'cel  of  goods  for  the  benefit 
of  the  owner  of  goods  sacrificed  for 
the  common  benefit,  was  affu'jned  by 
the  Piivy  Council  in  Strang  v.  Hcott 
(1889),  14  App.  Cas.  601;  and  in  NoheVs 


Exjjlosives  Co.  V.  liea  (1897),  2  Com. 
Cas.  203,  Mathew,  J.,  held  that  the 
shipowners  were  liable  in  damages 
to  the  owners  of  goods  jettisoned  for 
delivering  the  rest  of  the  cargo  with- 
out taking  security  from  the  con- 
signees for  their  respective  contri- 
butions. (Accord.  The  Santa  Ana 
(1907),  154  Fed.  E.  800.) 


395 


SECT.  LXXX.]  AND  LEGAL  REMEDIES. 

§  80.  With  regard  to  the  average  bond  or  agree-  Average 

...  ,      ,  1         •         J?        agreements. 

ment  referred  to  m  the  above  judgment,  as  navmg  tor 
a  long  time  been  customarily  used  by  shipowners  as  a 
convenient  step  in  the  carrying  out  of  the  duty  thus 
incumbent  upon  them,  a  decision  of  some  importance 
was  subsequently  given. 

By  way  of  introduction  it  may  be  explained  that 
when  a  ship  arrives  at  its  port  of  destination  subject  to  a 
claim  for  general  average,  the  shipowner  finds  himself 
in  a  position  of  some  difficulty.  An  obligation,  it  is 
now  clear  as  it  has  long  been  thought,  is  imposed  on 
him,  not  to  part  with  the  goods  until  he  has  taken 
reasonable  measures  towards  enforcing,  as  against  each 
consignee,  the  lien  which  exists  at  the  moment  of  the 
ship's  arrival.  This  he  can  only  do  either  by  detaining 
the  goods,  or  by  taking  from  the  consignee,  before 
parting  with  them,  some  fair  equivalent  in  the  shape 
either  of  a  deposit  of  money  or  satisfactory  engagement 
to  pay.  But  it  greatly  concerns  the  merchant  to  obtain 
his  goods  without  delay,  so  as  not  to  lose  his  market : 
while  it  is  impossible  for  the  shipowner,  without  some, 
and  often  a  long  delay,  to  ascertain  the  exact  amount 
payable.  Some  reasonable  arrangement,  therefore,  has 
to  be  come  to :  and  it  is  by  no  means  easy  to  determine 
what  arrangement  would  be  reasonable,  so  as  to  balance 
the  conflicting  claims  of  shipowner,  merchant,  and 
underwriter. 

There  has  been  [said  Mr.  Lowndes  in  1888],  as  far 
back  as  I  can  recollect,  certainly  for  the  last  fifty  years,  a 
difference  of  practice  in  this  matter  between  London  and 
Liverpool.  The  old  London  practice  was  to  deliver  the 
goods,  unless  perhaps  in  exceptional  cases,  upon  a  simple 
undertaking  signed  by  the  consignee,  that  he  will  i)ay 
his  share  of  general  average  when  called  upon.     The 


396  lip:n  for  general  average,  [chap.  ix. 

Liverpool  shipownern  were  not  satisfied  with  this :  they 
named  the  adjuster  and  required  tlie  consignee  to  engage 
to  pay  the  sum  which  this  adjuster  should  allow  as  his 
share:  thus  virtually  making  the  adjuster  a  sort  of 
arbitrator  between  them.  When  the  amount  at  stake 
was  large,  they  further  required  tlie  consignee  to  deposit 
with  them  a  sum  sufficient  to  cover  it.  One  or  other,  at 
least,  of  these  two  conditions  they  usually  insisted  on 
before  parting  with  the  goods. 

From  this  difference  in  the  method  of  working 
])ursued  in  two  great  cities  so  closely  connected  together, 
there  inevitably  arose  a  good  deal  of  friction :  and 
some  years  ago  a  serious  effort  was  made  to  reform 
the  practice  of  Liverpool.  The  underwriters  especially 
complained  that,  owing  to  the  power  given  by  the 
existing  system  to  the  adjusters,  an  underwriter  might 
find  himself  practically  precluded  from  questioning  an 
adjustment,  because  it  was  binding  on  his-  assured, 
although  he  himself  had  no  voice  in  the  selection  of 
the  adjuster,  nor  opportunity  for  offering  arguments, 
explanations,  or  evidence,  in  support  of  his  view  of  the 
question.  Conferences  were  held  between  representa- 
tives of  the  Shipowners'  Association,  Chamber  of  Com- 
merce, and  Underwriters'  Association,  and  after  long- 
discussion,  a  new  form  of  average  agreement  was 
adopted,  which  received  the  sanction  of  all  three  bodies. 
The  old  Lloyd's  form  was  universally  felt  to  be  too 
lax  to  be  applicable  fin  Liverpool] :  indeed,  there  was 
reasoQ  to  believe  that,  in  London  itself,  though  nomi- 
nally recognized,  it  was,  on  most  occasions  of  importance, 
superseded  by  something  considerably  more  stringent. 
All  that  could  be  done,  then,  at  these  conferences,  was 
to  reform  the  abuses  which  had  grown  out  of  tlie  old 
Liverpool  form.     This  was  done  by  providing — first,  that 


SECT.  LXXX.  I  AND  LEGAL  REMEDIES. 

there  should  be  a  sort  of  appeal  against  tlie  conclusions 
of  an  adjustment  by  means  of  a  reference  to  arbitration 
in  case  of  objection  within  a  limited  time  ;  secondly,  that 
the  amount  of  deposit  should  be  fixed  by  the  adjuster, 
and  paid  into  his  hands  as  a  stakeholder  conjointly  with 
the  shipowner.  This  state  of  things — Liverpool  using 
its  amended  form,  and  London,  at  least  nominally, 
adhering  to  the  old  Lloyd's  form — continued  for,  as  far 
as  I  remember,  eio^ht  or  ten  years  at  least.  It  has  been 
broken  in  upon  by  the  following  decision. 

The  steamship  Tliales  (?/),  on  her  voyao^e  from  Buenos  irnth  v. 
Ayres  for  Liverpool,  grounded  near  Bridport,  and  part 
of  her  cargo  was  jettisoned,  after  which,  b}'  the  assist- 
ance of  several  tugs,  the  vessel  was  got  off  and  proceeded 
on  her  voyage.  On  her  arrival  at  Liverpool,  the  plaintiffs, 
who  were  consignees  of  cargo,  applied  for  delivery  of 
their  goods,  which  was  refused  by  the  shipowners  except 
upon  condition  that  they  would  sign  an  average  bond  in 
the  Liverpool  form,  and  make  a  deposit  of  10  per  cent, 
on  the  value  of  their  goods ;  wliicli  was  to  be  made, 
either,  as  provided  by  the  bond,  in  the  joint  names  of 
the  shipowner  and  adjuster,  or  in  the  name  of  the  ship- 
owner alone,  or  of  the  adjuster  alone.  This  the  con- 
signees refused  to  do ;  but  offered  to  sign  the  London 
form  of  bond,  and  to  pay  10  per  cent,  on  the  value  of 
their  goods  into  a  joint  account  either  of  themselves  and 
the  shipowners,  or  of  nominees  of  them  both.  This 
being  declined  by  the  shipowners,  the  merchants  paid 
under  protest,  and  immediately  brought  an  action  against 
the  shipowners  to  recover  the  sum  so  paid  and  damages 
for  detention  of  their  goods. 

This  raised  the  question  of  the  right  of  the  ship- 

{ij)    llnth  V.  Lamport,  Gibbs  v.  Lamport  (1885-0),  IG  Q.  13.  D.  442,  735 

(C.  A.). 


397 


398 


LIEN  FOR  GENERAL  AVERAGE, 


fCHAP.  IX. 


owner  to  detain  the  goods  in  this  manner,  and,  inci- 
dentally, of  the  reasonableness  of  the  Liverpool  form  of 
bond.  It  vras  tried  in  the  Queen's  Bench  Division, 
before  Mathew  and  Smith,  JJ.,  and  decided  in  favom' 
of  the  plaintiffs. 

"  It  appears  to  me,"  said  Mathew,  J.,  "our  judgment  must  be 
for  the  plaintiffs  in  each.  case.  The  case  has  not  been  stated  with  a 
view  of  having  the  question  determined,  whether  according  to  the 
custom  of  merchants  and  the  law  of  England  a  shipowner  is  entitled  in 
every  case  where  there  is  a  claim  for  general  average  to  retain  the 
cargo  until  payment  of  the  amount  has  been  made.  It  might  be 
necessary  to  decide  that  formally  and  deliberately  if  any  such  right 
had  been  asserted  in  this  case  by  the  owner  of  the  ship.  Mr.  Finlay 
referred — I  will  not  do  more  than  say  referred — to  the  matter,  because 
he  did  not  argue  it  at  any  length,  but  he  appeared  to  say  that,  when 
the  time  came  and  when  the  proper  case  arose,  he  would  be  prepared 
to  assert  that  the  authorities  show  that  such  a  right  as  I  have  referred 
to  exists.  The  only  cases  he  was  able  to  call  our  attention  to,  were  the 
cases  of  Simonds  v.  White  (z)  and  Crooks  v.  Allan  {a).     It  is  sufficient 


(2)  (1824),  2  B.  &  C.  805.  In  this 
case  an  English  shipper  of  goods 
sued  an  English  shipowner  to  recover 
hack  an  amount  which  he  had  been 
forced  to  pay  at  St.  Petersburg,  the 
ship's  port  of  destination,  by  the 
enforcement  at  that  place  of  the 
ship's  right  of  lien,  as  contribution 
to  a  general  average  there  adjusted, 
rightfully  according  to  the  laws  of 
Russia,  but  in  excess  of  what  would 
have  been  due  according  to  English 
law.  Abbott,  C.  J.,  in  delivering 
the  judgment  of  the  Court  of  Queen's 
Bench,  said  :  "  The  pi-inciple  of 
general  average,  namely,  that  all 
whose  property  has  been  saved  by 
the  sacrifice  of  the  propertj''  of  an- 
other shall  contribute  to  make  good 
his  loss,  is  of  very  ancient  date, 
and  of  universal  reception  among 
commercial  nations.  The  obligation 
to  contribute,  therefore,  depends  not 


so  much  upon  the  terms  of  any  par- 
ticular instrument  as  uison  a  general 
rule  of  maritime  law.  The  obliga- 
tion may  be  limited,  qualified,  or 
even  excluded,  by  the  special  terms 
of  a  contract,  as  between  the  parties 
to  the  contract ;  but  there  is  nothing 
of  that  kiud  in  anj^  contract  between 
the  parties  to  this  cause.  There  are, 
however,  many  variations  in  the  laws 
and  usages  of  different  nations  as  to 
the  losses  that  are  considered  to  fall 
within  this  principle.  But  on  one 
point  all  agree,  namely,  the  place  at 
which  the  average  shall  be  adjusted, 
which  is,  the  place  of  the  ship's 
destination  or  delivery  of  her  cargo. 
I  believe  also  that  all  are  agreed  on 
another  point,  namely,  that  the 
master  is  not  compellable  to  part 
with  the   possession   of   goods  until 


(a)  (1879),  5  Q.  B.  D.  38. 


SECT.  LXXX.]  AND  LEGAL  REMEDIES. 

to  say  that  neither  of  those  authorities  iu  my  judgment  justify  him  in 
the  argument  that  any  such  right  exists  ;  but  in  this  case  it  is  perfectly 
clear  that  no  such  right  was  insisted  upon.  If  it  had  been  a  question 
of  lien,  and.  if  the  shipowner  had  called,  upon  the  consignee  to  deal 
with  his  lien,  the  question  of  amount  wovild  immediately  have  presented 
itself,  and  a  more  onerous  and  difficult  position  for  a  shipowner  to 
place  himself  in  cannot  be  imagined.  He  would  be  bound  to  give  up 
the  goods  upon  having  a  proper  tender  made  to  him.  In  order  to 
enable  a  proper  tender  to  be  made,  he  would  be  bound  to  give  the 
necessary  information  to  the  consignee  ;  and  then  he  would  run  very 
great  risk  of  asking  too  much  or  too  little,  a  risk  to  the  other  con- 
signees in  the  one  case,  and  a  risk  to  the  particular  consignee  in  the 
other.  But  no  such  position  was  taken  up  by  the  shipowner.  What 
the  shipowner  insisted  uj^on  was  upon  the  bond  being  in  the  Liverpool 
form.  He  conveyed  to  the  consignees,  that  he  was  willing  to  take 
security,  but  he  insisted  that  it  should  be  in  the  form  of  what  has  been 
called  the  Liverpool  form.  The  question  presented  to  us,  as  I  under- 
stand, is,  whether  that  bond  is  such  a  security  as  a  shipowner  might 
reasonably  demand. 

"It  appears  to  me  perfectly  clear  to  be  unreasonable  in  two 
particulars ;  first,  in  insisting  upon  making  the  Average  Adjuster  the 
arbitrator  in  the  first  instance  with  a  complicated  arrangement  for  an 
appeal  from  his  decision ;  and  secondly,  in  insisting  upon  payment 
over  of  the  deposit  money,  either  to  the  owner  of  the  ship  himself  or 
to  the  owner  and  some  average  adjuster,  so  that  the  money  is  placed 
for  a  time  entirely  out  of  the  reach  of  the  consignee  of  the  goods  ;  and 
that  money,  according  to  the  terms  of  the  bond,  may  be  drawn  upon 
by  the  owner  of  the  ship,  where  the  money  is  deposited  in  his  name,  or 
by  the  owner  of  the  ship  and  the  average  adjuster  whom  he  would 
name,  in  the  event  of  its  being  deposited  in  the  names  of  both  of  them. 
That  form  of  average  bond  is  to  mj'  mind  unreasonable.  The  form  of 
London  bond,  which  we  are  told  has  existed  for  seventy  or  eighty 
years,  appears  to  be  a  reasonable  one ;  and  I  should  be  glad  if  the 
result  of  our  decision  Avere  to  induce  the  shipowners  of  Liverpool  to 


the  sum  contributablo  in  respect  of  pressly  given  by  the  Consulat,  c.  98  ; 

them  shall  be  either  paid  or  secured  recognized  by  Cleirac  in  his   Com- 

to  his  satisfaction.     This  appears  by  meutary  on  the  Jugemens  d'Oleron, 

the   case   to  be   the  law  of   Eussia.  p.   35 ;    and  allowed  by  the  French 

This  power  is  noticed   by  the  civil  Ordinance   of   Marine,    tit.    Bu,   Jet, 

law.  Dig.  lib.  14,  tit.  2,  L>.     It  is  ex-  art.  21." 


399 


400  LIEN  FOR  GENERAL  AVERAGE,  [CHAP.  IX 

have  recourse  to  the  greater  experience  and  wisdom  of  their  London 
brethren,  and  adopt  that  form  of  bond  "  (i). 

Smith,  J.,  concurred. 

The  case  was  carried  to  the  Court  of  Appeal,  but 
there  affirmed  (c). 

Lord  Esher  said : 

"The  order  of  the  Queen's  Bench  Division  must  be  affirmed, 
though  I  do  not  think  that  the  grounds  of  our  decision  will  be  satis- 
factory to  either  of  the  parties.  The  defendants'  ship  arrived  at  the 
port  of  destination,  after  a  voyage  in  which  a  general  average  loss  had 
occurred.  The  plaintiffs  as  owners  of  goods  on  board  the  ship  were 
liable  to  contribute  to  this  general  average  loss.  The  defendants,  as 
shipowners,  had  a  lien  on  all  the  goods  on  board  to  secure  payment  by 
each  owner  of  his  proportion  of  this  general  average,  and  were  entitled 
to  refuse  to  deliver  goods  to  any  consignee  of  the  cargo  until  they  were 
paid  the  amount  of  the  general  average  to  which  he  was  liable,  and 
they  were  not  bound  to  accept  security  for  the  amount  due  in  lieu  of 
immediate  payment.  The  result  is  that  each  consignee  must  pay  the 
amount  which  is  demanded  by  the  shipowner  for  general  average,  or 
must  at  his  own  risk  tender  what  he  thinks  is  his  proper  proportion. 
Of  course  the  master  would  have  no  right  to  insist  upon  payment  of 
an  arbitrary  sum  without  furnishing  the  necessary  account  of  par- 
ticulars, to  enable  the  owner  to  ascertain  how  this  amount  became  due. 
If  the  master  refused  to  furnish  such  particulars  the  case  would  come 
under  the  rule  laid  down  by  Dr.  Lushington  in  The  Xorwuij  {d),  and 
the  consignee  would  not  be  prejudiced  by  not  having  made  a  sufficient 
tender.  But  if  after  giving  all  proper  information  the  master  were  to 
say,  '  you  must  either  pay  the  amount  which  I  demand  from  you,  or 
you  must  pay  the  right  sum,'  the  owner  of  the  cargo  could  not  insist 
upon  paying  the  amount  into  a  bank  in  the  name  of  persons  other  than 
the  shipowner,  but  must  pay  him  either  the  amount  demanded,  or 
tender  that  which  he,  the  consignee,  believes  to  be  reasonable.  If, 
however,  the  master  had  said  that  whatever  might  be  the  amount  of 
the  sum  tendered  by  the  consignee,  he  would  accept  nothing  but  a 
particular  security,  then  the  question  would  ai-ise  whether  the  security, 

{h)  (18S5),  16  a  B.  D.  442,  at  p.  (c)  (ISS(J),  IG  Q.  B.  D.  735. 

444.  {d)  (1864),  Br.  &  L.  377,  397. 


sp:ct.  lxxx.J  and  legal  remedies.  401 

which  he  demanded,  was  a  reasonable  one.  If  he  says  that  he  will 
only  accept  a  deposit  of  10  per  cent,  on  the  value  of  the  goods,  this,  as  • 
a  general  rule,  would  be  wholly  unreasonable,  though  there  might  be 
cases  where  it  would  be  reasonable.  We  must  consider  whether  in  the 
present  case  it  is  unreasonable  having  regard  to  the  other  conditions 
respecting  it.  The  bond  requires  that  the  deposit  shall  be  made  in  the 
joint  names  of  the  defendants  and  'their  average  adjuster.'  The 
word  'their'  clearly  points  to  an  adjuster  appointed  by  themselves. 
Then  the  shipowner  is  to  have  power  to  draw  upon  it  from  time  to 
time  for  his  disbursements.  This  includes  all  disbursements  and  pay- 
ments, which  in  the  result  the  shipowner  will  have  to  pay  for  himself. 
Take  the  case  of  salvage.  The  ship  is  in  distress  and  is  succoured  by 
salvors,  and  the  master  makes  a  compromise  with  them  for  the  payment 
of  a  large  sum,  and  it  may  turn  out  upon  the  final  settlement  that  a 
large  part  of  the  salvage  will  fall  on  the  shipowner,  and  yet  under 
the  terms  of  the  bond  the  master  is  to  be  at  liberty  to  take  the  whole 
amount  of  the  salvage  out  of  the  deposit,  the  only  security  for  the 
repayment  of  what  ought  to  be  returned  being  the  credit  of  the  ship- 
owner. 

"If  the  shipowner  requires  the  consignee  to  enter  into  a  bond  in 
particular  terms,  the  question  arises  whether  the  bond  is  unreasonable, 
and  if  part  of  what  is  insisted  upon  is  unreasonable,  the  whole 
instrument  is  unreasonable.  That  the  bond  is  unreasonable,  considered 
as  one  which  the  master  may  impose  on  the  consignee,  is,  I  think, 
clear.  First,  it  makes  the  shipowner's  average  adjuster  an  arbitrator, 
and  that  is  unreasonable.  Then  there  is  a  peculiar  kind  of  appeal 
from  the  decision  of  the  average  adjuster,  which  prevents  the  parties 
from  taking  the  opinion  of  a  legal  tribunal.  Further,  the  terms  of  the 
deposit  are  unreasonable,  inasmuch  as  it  requires  a  deposit  in  the  joint 
names  of  the  representative  of  the  shipowner  and  the  average  adjuster. 
Then  as  to  the  mode  in  which  payments  are  to  be  made  out  of  the 
deposit.  The  average  adjuster  of  the  shipowner  is  to  be  the  judge, 
and  what  purports  to  be  a  deposit  is  to  be  drawn  upon  for  such 
disbursements  as  these  two,  without  the  consent  of  the  depositor, 
think  ought  to  be  paid  to  the  shipowner.  For  these  difPerent  reasons 
the  bond  is  one  which,  I  think,  the  Liverpool  shipowners  have  no 
right  to  impose  upon  the  owner  of  any  cargo  which  arrives  there. 

"  The  case  does  not  enable  us  to  compare  this  form  of  bond  with 
the  form  called  the  London  bond,  and  I  therefore  give  no  opinion  as 
to  whether  the  latter  form  is  reasonable  or  not." 

^-  D  D 


402  LIEN  FOR  GENERAL  AVERAGE,      [CHAP.  IX. 

Lincllev,  L.  J.  : 

"  I  am  unable  to  say  that  the  decision  of  the  court  below  was 
wrong.  The  right  of  the  master  to  refuse  to  deliver  goods  to  a 
consignee,  unless  he  is  paid  the  consignee's  share  of  general  average, 
appears,  up  to  a  certain  point,  to  be  clear.  I  say  up  to  a  certain  point, 
because  if  the  amount  due  is  paid  or  tendered,  the  master  cannot 
refuse  delivery.  It  is  unnecessary  to  say  whether  he  can  refuse  if 
reasonable  security  is  offered.  But  if  no  question  of  payment  or 
tender  is  raised,  and  he  himself  requires  security,  he  cannot  impose 
unreasonable  terms.  The  question  here  is,  can  the  defendants  insist 
upon  the  consignee's  doing  one  of  two  things,  to  make  the  deposit  as 
described  in  the  case,  or  in  the  alternative  to  sign  the  Liverpool  bond. 
As  to  the  first  alternative,  when  you  ascertain  that  the  object  of  the 
deposit  is  to  give  the  master  control  of  the  money  for  the  benefit  of 
the  shipowner,  I  cannot  think  that  it  is  reasonable.  As  to  the  second 
I  agree  that  the  bond  is  not  one  which  can  be  imposed  upon  a 
consignee  h gainst  his  will." 

Lopes,  L.  J.,  concurred.. 

Underwriters'  f§  80a.  It  is  tlic  usual  practicG  of  the  consignees  of 

the  cargo,  when  they  have  been  obKged  to  make  a  cash 
deposit  in  order  to  obtain  delivery  of  their  goods,  to 
claim  the  amount  of  the  deposit  from  their  insurers,  who 
generally  agree  to  reimburse  them  this  amount  in  whole 
or  in  part,  according  as  the  goods  are  fully  or  only  partly 
insured.  The  assured  then  hand  over  to  the  insurers 
the  receipt  given  for  the  deposit,  sometimes  accompanied 
by  a  formal  assignment  to  the  insurers  of  their  interest 
in  the  deposit,  up  to  the  amount  provided  by  the 
insurers. 

Owing  to  this  circumstance  another  method  of  pro- 
viding security  for  the  payment  of  the  cargo's  contribu- 
tion to  general  average,  viz.,  the  substitution  for  a 
deposit  of  a  guarantee  given  b}^  the  underwriters  of  the 
cargo,  has  come  widely  into  use  since  the  last  edition  of 
this  work  was  published.      This   method   has   pi-ovod   a 


SECT.  LXXXA.J  AND  LEGAL  REMEDIES. 

very  convenient  one  in  the  majority  of  cases,  to  the 
cargo-owner  because  he  is  not  called  upon  to  make  a 
cash  deposit,  to  the  shipowner  where,  owing  to  the  lack 
of  sufficient  information,  the  amount  which  ought  to  be 
collected  fnmi  the  consignees  of  the  cargo  by  way  of 
deposit  cannot  be  estimated  correctly. 

There  is  no  forjn  of  guarantee  in  use  which  is 
recognized  as  the  standard  form  (e),  although  attempts 
have  recently  been  made  to  draft  one  which  would  prove 
acceptable  to  all  the  interests  concerned. 

'ilie  question  remains  to  be  considered,  whether  a 
shipowner  who  accepts  a  guarantee,  instead  of  requiring 
a  deposit,  fulfils  his  duty  to  the  cargo-owner  to  whom  a 
general  average  contribution  is  owing.  In  one  respect  a 
guarantee  can  never  be  as  good  a  security  as  a  deposit 
of  money,  for  it  uiay  become  inadequate  or  even  value- 
less through  the  insolvency  of  the  guarantor.  It  may 
tlierefore  be  argued  that  a  shipowner  fails  in  his  duty  to 
the  cargo-owner,  if  he  agrees  to  substitute  a  guarantee 
for  a  deposit.  It  must,  liowever,  be  remembered  that  in 
another  respect  a  guarantee  of  the  whole  amount  of  the 
contribution  may  be  a  better  security  than  a  deposit ; 
for  the  amount  of  the  contribution  is  uncertain  at  the 
time  when  the  security  is  given,  and  there  is  a  possibility 
that  it  will  exceed  the  deposit. 

The  editors  submit  that  the  sliipowner  fulfils  his 
obligation  if  he  obtains  such  security  for  the  payment  of 
the  contribution  as  a  prudent  man  would  be  content  to 
take   for   his   own    benefit  (/).     'I'lie    guarantee   of   the 


(f)  A     form,     entitled     "Lloyd's  (/)  The  judgments  of  Mathevv,  J., 

Gfneral  average  Guiirantoo,"  which  and  Lindley,  L.  J.,  in  Ilnth  v.  Lum- 

has  been  adopted  for  some  years  by  p07-t,  tnite,  pp.  '699,  402,  suggest  that 

the  Committee  of   Lloyd's   as   their  the    shipowner's    duty    is    to    take 

officialform,isset()utinAppendixBB,  reasonable  security.     Even  a  trustee 

infra.  is  not  ex])ected,  save  in  the  invest- 

D  D  2 


403 


404  LIEN  FOR  GENERAL  AVERAGE,      [CHAP.  IX. 

Corporation  of  Lloyd's  or  that  of  an  Eng-lish  insurance 
company  of  high  standing  seems  amply  to  satisfy  this 
test ;  but  the  shipowner  would  perhaps  incur  responsi- 
bility if  he  took  the  guarantee  of  a  foreign  corporation 
or  underwriter  against  whom  all  the  remedies  given  by 
English  law  might  not  be  available. 

There  can  be  no  doubt,  in  the  opinion  of  the  editors, 
that  a  guarantee  for  a  part  only  of  the  contribution 
would  not  be  a  sufficient  security. J 

SECTION  II.—ADMIBALTY  JURISDICTION. 

§  81.  Notwithstanding  the  amalgamation  of  the 
Admiralty  and  Common  Law  Courts  by  the  Judicature 
Act,  1S7-^,  it  is  still  necessary  for  several  purposes  to 
mark  distinctly  the  jurisdiction  of  the  High  Court  of 
Admiralty  in  matters  of  general  average,  if  only  as 
assisting  to  define  the  extent  of  jurisdiction  in  such 
matters  given  by  statute  to  the  county  courts. 

The  Court  of  Admiralty,  which  from  its  mode  of 
procedure  would  seem  to  have  especial  facilities  for 
dealing  with  questions  of  general  average,  had  for  many 
years  persistently  refused  to  touch  them,  as  being  outside 
its  jurisdiction  (^).  There  was,  however,  one  case  in 
which  such  a  duty  was  forced  upon  it :  namely,  when 
there  was  in  the  custody  of  the  court  a  fund,  representing 
the  proceeds  of  the  cargo,  and  when  claims  for  general 
average  were  made  against  that  fund,  in  virtue  of  tlie 
shipowner's  right  of  lien.      In  such  a  case,  the  Court  of 

ment    of    the   trust  funds,   to  take  Gaunt  {IS%'6),  9  App.  Cas.  1,  19;  per 

greater     precautions     in    managing  Lord  Watson,  in  Learoyd  v.  Whiteley 

trust  affairs  than  an  ordinary  prudent  (1887),  12  App.  Cas.  727,  733  ;  Lewin 

man    of     business     -would    take    in  on  Trusts,  12th  edit.  pp.  327,  373.) 

managing  similar  affairs  of  his  own.  (</)   The  North   Star  (1860),  Lush. 

(Per  Lord  Blackburn,  in  Speight  v.  45. 


SECT.  LXXXI.J  AND  LEGAL  REMEDIES.  ^^^ 

Admiralty,  being  under  the  necessity  of  determining  to 
whom  the  surplus  of  the  fund  in  question  should  be  paid 
out,  was  and  still  is  compelled  incidentally  to  adjudicate 
on  the  question  of  general  average  thus  brought  before  it. 

In  the  case  of  The  Galam{h),  the  ship,  which  was 
carrying  a  cargo  subject  to  a  respondentia  bond  springing 
out  of  an  accident  before  shipment  in  that  vessel,  was 
driven  ashore  on  one  of  the  Scilly  Islands,  and  was 
rescued  under  circumstances  which  gave  rise  to  a  claim 
for  general  average.  The  consignees  not  having  paid 
off  the  respondentia  bond,  the  cargo  was  arrested  at  the 
suit  of  the  bondholder,  and  sold  under  an  iVdmiralty 
decree,  and  the  proceeds  were  lodged  in  the  registry  of 
that  court.  The  captain,  who  had  made  himself  liable 
for  the  expenses  constituting  the  general  average,  laid 
claim  on  these  proceeds  for  the  cargo's  share.  This 
claim  was  rejected  by  Dr.  Lushington,  on  the  ground 
that  the  Court  of  Admiralty  never  dealt  with  questions 
of  general  average  ;  but,  on  appeal  to  the  Privy  Council, 
this  decision  was  reversed,  and  the  master's  claim 
admitted. 

Lord  Kingsdown,  in  giving  judgment,  pointed  out 
that,  though  the  master  would  have  no  right,  after 
parting  with  possession  of  the  cargo,  which  would  put 
an  end  to  his  right  of  lien,  to  go  before  the  Court  of 
Admiralty  and  request  that  court  to  enforce  his  claim ; 
yet  this  was  entirely  different  from  his  present  applica- 
tion, which  was  simply,  that  the  court  would  not  take 
the  property  out  of  his  hands  without  giving  effect  to 
that  right  of  lien  which  he  himself  at  that  moment  had 
as  against  the  owner  of  it,  and  against  the  respon- 
dentia bondholder   who  claimed  it  in  the  name  of  the 

(/t)   Cargo  ex  Galum  (1863),  Br.  &       nam.  Cleari/  v.  M' Andrew,  2  Moore, 
L.  181  ;  :53  L.  J.  (Adm.)  97;    S.  C,       P.  C.  C.  (N.  S.)  216. 


406  LIEX  FOR  GENERAL  AVERAGE,      [cHAP.  IX. 

cargo  owner.     This  latter  demand,  the  court  determmed 
he  had  a  clear  right  to  make  (i). 

Admiralty  ^    morc    extended    and   immediate    iurisdiction  in 

Amendmeiit  "^ 

Act ;  effect  of.  questions  of  general  average  was  imposed  upon  the 
Court  of  Admiraltv,  bv  the  Admiraltv  Court  Act, 
1861  {k). 

This  Act  provides,  by  §  6,  that  "  the  High  Court  of 
Admiralty  shall  have  jurisdiction  over  any  claim  by  the 
owner  or  consignee  or  assignee  of  any  bill  of  lading  of 
any  goods  carried  into  any  port  in  England  or  Wales  in 
any  ship,  for  damage  done  to  the  goods  or  any  part 
thereof  by  the  negligence  or  misconduct  of  or  for  any 
breach  of  duty  or  breach  of  contract  on  the  part  of  the 
owner,  master,  or  crew  of  the  ship,  unless  it  is  shown  to 
the  satisfaction  of  the  court  that,  at  the  time  of  the 
institution  of  the  cause,  any  owner  or  part-owner  of  the 
ship  is  domiciled  in  England  or  Wales  .  .   .   ."(/). 

This  clause,  it  will  be  seen,  gives  to  the  owners  of 
cargo,  in  certain  cases,  a  right  of  proceeding  in  Admiralty, 
and,  as  a  consequence,  a  right  of  arresting  the  ship, 
practically  equivalent  to  the  common  law  lien  which  the 
shipowner  has  upon  her  cargo.  It  becomes  a  matter  of 
importance,  then,  to  consider  to  what  extent,  if  at  all, 
this  right  is  applicable  to  claims  for  jettison  or  short 
delivery  of  cargo  resulting  from  a  general  average  act. 
On  this  subject  there  have  been  the  following  decisions: 

('/)  Cargo  ex  Galam  (1863),  Br.  &  jurisdictiou  of  tlie  Court  of  Admi- 

L.  167,  at  p.  181  ;  33  L.  J.  (Adin.)  97  ;  rally,  ought,  according  to  the  general 

S.  C,  110771.    Cleary  v.  M' Andrew,  2  rule  applicable  to  such  statutes,   to 

Moo.  P.  C.  C.  (N.  S.)  216.     See  also  be  construed  liberally,  so  as  to  afford 

The  Soblomsten  (1866),  L.  E.  1  A.  &  the    utmost    relief    which    the    fair 

E.  293.  meaning  of  its  language  will  allow." 

{k)  24  Yict.  c.  10.  {The   Pieve   Swperiore  (1874),   L.   R. 

{I)  "  This  statute,  being  remedial  5  P.  C.  482,  at  p.  492.) 
of  a   grievance,    by  amplifying  the 


SECT.  LXXXI.J  AND  LEGAL  KEMEDIKS.  407 

111  the  case  of  The  Ironsides  [m)  it  was  decided  that.  Act  only 

.   applicfible  to 

since  the  terms  of  the  Act  referred  only  to  the  case  oi  case  of  goods 

WT    1  1,  delivered  iu 

ffoods  carried  into  a  port  in   Eiio'land   or    Wales,  there  England  or 

,  ■,    .        .   1      •      1  -      X    ^1        Wales. 

could  be  no  right  to  proceed  m  Admiralty  against  the 
ship  in  the  case  of  a  complete  non-deliveiy  of  the 
claimant's  goods  ;  but  this  decision  must  be  taken  to  be 
overruled  by  the  later  case  of  The  Danzlij  (/?),  where  it 
was  held  that  the  word  "carried"  must  be  read  as 
meaning  "  intended  to  be  carried,"  so  as  to  give  the 
same  claim  when  all  the  cargo,  or  the  whole  of  a  parcel 
comprised  in  one  bill  of  lading,  is  wrongfully  short- 
delivered,  as  when  only  a  part  of  it  is  so. 

The  goods,  however,  must  have  been  either  actually 
delivered,  or  intended  to  be  delivered,  at  a  port  in 
England  or  Wales.  Where  the  voyage  is  to  some 
foreign  port,  and  the  alleged  breach  of  contract  consists 
in  the  non-delivery  there,  the  statute  gives  no  juris- 
diction (o).  But  if,  though  the  voyage  be  to  a  foreign 
port,  the  goods  have  in  fact  been  carried  into  a  port  in 
England,  the  court  has  jurisdiction;  as,  wdiere  the 
goods  were  intended  for  Dunkirk,  and  the  ship  by  stress 
of  weather  was  taken  into  Ramsgate,  and  there  the 
master  refused  either  to  go  on  to  Dunkirk  or  to  give 
delivery  at  Ramsgate  (  p). 

The   case   of    The   Norwuij   determines   that   it   is   a  The  Act  gives 

.a  remedv  in 

breach  of  duty  or  of  contract,  bringing  the  case  within  case  of  with- 
holding in- 
the   Admiralty  jurisdiction,   for   the  master  of    a  shij).  formation; 

(//()  (1862),  Lush.  458.  jurisdiction,   so  that   the  ship  couhl 
(n)  (18G3),  Br.  &  L.  102.  be  arrested  on   subsequently  coming 
(o)  jTAe /u<««»  (1863),  Br.  &  L.  1.  to     England     without     her     cargo. 
\p)  The   Baliia  (1863),   Br.   &  L.  (Affirmed  in  P.  C.  (1874),  L.   R.  b 
61  ;    The  Pafria  (1871),  L.  E.  3  A.  &  P.  C.  482.)     This,  however,  does  not 
E.  436  ;  and  see  The  Fleve  Superior e  give   a   maritime  lien   on  the   ship ; 
(1873),  L.  E.  4  A.  &  E.  170;  where  thei-efore  there  would  be  no  liability- 
it  was  held  that  the  mere  calling  at  iu  the  hands  of  a  subsequent  pur- 
an    English    port    for    orders   gave  chaser.     (S.  C.  at  p.  491.) 


408 


LIEN  FOR  GENERAL  AVERAGE,      fCHAP.  IX. 


who  has  thrown  cargo  overboard,  and  who  retains  the 
cargo  for  payment  of  a  deposit  claimed  for  general 
average,  to  withhold  from  the  consignee  such  information 
as  will  enable  him,  not  merely  to  ascertain  for  himself 
whether  the  amount  of  deposit  claimed  is  reasonable, 
but  also  to  compute  his  own  counter-claim  for  jettison. 
and  iu  case  of   It  is  likcwise  sucli  a  brcach  of  contract,  if  the  muster 

demanding  .       .  n  •         i  ^  ^•  n> 

excessive  insists  on  a  larger  deposit  than  the  dmerence  between 
his  claim  on  the  consignee  for  general  average,  and  the 
consignee's  counter-claim  on  the  ship  for  the  ship's  share 
of  the  loss  by  jettison  (q). 

Dr.  Lushington  in  this  case  laid  it  down  as  being 
the  duty  of  the  master,  when  he  demands  a  deposit  for 
general  average,  to  furnish  the  consignee,  besides  surveys 
and  other  proofs  of  loss,  and  the  particulars  of  the 
jettison,  with  "  some  memorandum  from  an  average 
adjuster  as  to  the  probable  amount  of  contribution  from 
the  cargo  for  the  general  average"  (r).  [In  Waver  tree 
Sailing  iShip  Co.  v.  Love  [s),  however,  the  Privy  Council 
held  that  the  shipowner  is  not  bound  to  employ  an 
average  adjuster;  "if  he  engages  the  service  of  one,  it 
is  merely,"  said  Lord  Herschell,  ''as  a  matter  of  business 
convenience  on  his  part"  (t).] 

In  The  Norivay^  one  "breach  of  duty"  alleged  was, 
that  the  grounding  which  necessitated  the  jettison  arose 
from  the  negligence  of  a  non-compulsory  pilot.  The 
judge  of  the  Admiralty  Court  held  that  this  was  proved : 
but  on  a^^peal  to  the  Privy  Council  the  judgment  was  on 
this  point  reversed,  and  the  jettison  was  treated  as  a 
general  average  (?/).     This  average,  as  formiug  part  of 


{q)  The  Norway,  iu  P.  C.  (18C5), 
JhJr.  &L.  410-411. 

(?•)  The  Norway  (I860),  Br.  &  L. 
397-398. 


(s)  [1897]  A.  C.  373. 

{t)  lb.  p.  380. 

[»)  Br.  &  L.  407-408. 


SECT.   LXXXI.]  AND  LEGAL  REMEDIES. 


409 


the  matter  in  litigation,  was  adjusted  in  the  Admiralty 
Registry. 

It  does  not  appear  from  any  reported  decision  that  Application 
the  mere  short-delivery  of  cargo,  if  resulting  from  jetti-  jettisou. 
son  or  other  accident  of  navigation,  can  be  considered  as 
by  itself  constituting  such  a  "breach  of  contract  "  as  to 
give  to  the  consignee  a  right  to  arrest  the  ship  under 
Admiralty  process,  for  the  mere  purpose  of  obtaining 
security  for  his  debt.  It  is  conceived,  however,  that  a 
refusal  on  the  part  of  the  master  to  pay  the  ship's  share 
of  the  general  average  when  demanded,  or  perhaps  his 
refusal  to  give  an  undertaking  not  to  quit  the  port  until 
the  debt  has  been  paid  or  secured,  or  the  making  of 
preparations  to  depart  before  doing  so,  might  be  held  to 
bring  the  case  within  the  terms  of  the  Act. 

By     the     County    Courts    Admiralty    Jurisdiction  Jurisdiction 
Amendment  Act,  1869(2^'),  County  Courts,  whenever  the  Courts. 
amount  claimed  does  not  exceed  30(V.,  have   the   same 
jurisdiction,   as  regards  claims  of  this  nature,  which  is 
possessed  by  the  High  Court  of  Admiralty  [fj). 


(cc)  82  &33  Vict.  c.  ol. 

(?/)  In  (,\ir(/o('x  Ar</us  (1873),  L.  R. 
5  P.  C.  134,  the  Privy  Council  laid 
it  down  that  the  Admiralty  jurisdic- 
tion of  the  county  courts  is  in  fact 
more  extensive  than  the  oi'iginal  j  uris- 
diction  of  the  Admiralty  Court,  and 
includes  all  cases  which  fall  within 
the  comprehensive  words  of  the  Act — 
that  is  to  say,  to  "  any  claim  arising 
out  of  any  agreement  made  for  the 
use  or  hire  of  any  ship,  or  in  relation 
to  the  carriage  of  goods  in  any  ship, 
and  also  as  to  any  claim  in  tort 
in  respect  of  goods  carried  in  any 
ship,"    up   to   the   amount   of   300/. 


And  this  decision  was  followed  by 
the  Court  of  Appeal  in  The  Alina 
(1880),  5  Ex.  D.  227.  By  these 
decisions,  SiiDpson  v.  Blues  (1872), 
L.  U.  7  C.  P.  290,  in  which  it  was 
held  that  the  jurisdiction  conferred 
by  the  Act  did  not  extend  to  cases 
which  were  not  within  the  jurisdic- 
tion of  the  Admiralty  Court,  has 
been  overruled.  There  is,  however, 
no  j  ui'isdiction  under  the  Act  to 
entertain  a  claim  for  the  loss  of  a 
passenger's  luggage,  which  is  not 
"  goods  "  within  the  meaning  of  the 
Act.  {R.  V.  City  of  London  Court 
(1883),  12  Q.  B.  D.  115.) 


APPENDIX  A. 


THE  ROMAN  CIVIL  LAW. 

Those  portions  of  the  Digest  and  Institutes  of  Justiuian  which  bear 
on  this  subject  are  brought  together  in  a  convenient  form,  and  illus- 
trated by  copious  notes,  in  the  first  volume  of  M.  Pardessus's 
"Collection  de  Lois  Maritimes,"  from  which  the  following  extracts 
are  taken.  For  convenience  of  reference,  I  have  arranged  the  topics, 
so  as  to  follow  as  nearly  as  possible  the  order  in  which  the  different, 
branches  of  the  subject  have  been  treated  in  this  volume. 

Section  1.     what  losses  are  the  subject  of  general  average. 


1.  Lege  Rhodia  cavetur,  "  ut,  si 
levandae  navis  gratia  jactus  mer- 
cium  factus  est,  omnium  contribu- 
tione  sarciatur  quod  pro  omnibus 
datum  est." 

2.  Si  conservatis  mercibus  dete- 
rior  facta  sit  navis,  aut  si  c^uid 
exarmaverit,  nulla  facienda  est  col- 
latio,  quia  dissimilis  earuni  rerum 
causa  sit,  quae  navis  gratia  paren- 
tur,  et  earum  pro  quibus  mercedem 
aliquis  acceperit:  nam  et  si  faber 
ineudem  vel  malleum  fregerit,  non 
imputaretur  ei  qui  locaverit  opus: 
sed,  si  voluntate  vectorum,  vel 
propter  aliquem  metum,  id  detri- 
mentum  factum  sit,  hoe  ipsiim 
sarciri  oportet. 


1 .  The  Rhodian  law  decrees  that, 
if  goods  are  thrown  overboard  to 
lighten  a  ship,  all  shall  make  good 
by  contribution  that  which  lias 
been  given  for  all  (a) . 

2 .  If,  the  goods  being  preserved, 
the  ship  suffers  damage  or  loses 
any  of  her  tackling,  there  shall  be 
no  contribution,  there  being  no  dis- 
tinction between  thing-s  provided 
for  the  use  of  the  ship  and  other 
thing-s  for  which  a  man  receives 
hire  or  payment:  for,  if  a  smith 
breaks  his  anvil  or  hammer,  he 
cannot  charge  it  against  the  person 
who  employed  him  on  the  work. 
But  if  it  is  by  the  Avill  of  the  pas- 
sengers (b),  or  on  account  of  some 
danger,  that  this  damage  Avas 
done,  this  must  be  made  good  (c). 


(a)  Dig.  Lib.  14,  Tit.  2,  Fr.  1,  1  Pard.  104.  M.  Pardessus  is  of  opinion  that  this 
sentence  contains  all  that  the  Romans  really  borrowel  from  the  Rhodians  (Vol.  I, 
p.  23),  and  that  the  Rhodians  in  turn  borrowed  it  from  the  Phoenicians  (Vol.  1, 
Intr.  xxix.). 

{b}  "  Vectores  "  may  be  translated  passengers  or  merchants  on  board.  The  context 
shows  that  there  were  sometimes  "  vectores  sine  sarcina,"  passengers  who  had  no 
wares;  but  this  was  probably  exceptional.     (See  1  Pard.  10.'),  n.  3. 

(c)  Dig.  Lib.  14,  Tit.  2,  Fr.  2,  §  1.  1  Pard.  105. 


412 


APPENDIX  A. 


3.  Cum  arbor,  aut  aliud  navis 
instrumentum,  removendi  commu- 
nis periculi  causa,  dejectum  est, 
<3ontributio  debetur. 

4.  Arbore  caesa,  ut  navis  cum 
mercibus  liberari  possit,  aequitas 
contributionis  habebit  locum. 


5.  Si  navis  a  piratis  redempta  sit, 
Servius,  Ofilius,  Labeo,  omnes  con- 
ferre  debere  aiunt.  Quod  vero 
praedones  abstulerint,  eum  perdere 
cujus  fuerit;  nee  conferendura  ei 
-qui  suas  merces  redemerit. 


6.  Navis  onustae  levandae  causa, 
■quia  intrare  flumen  vel  portum  non 
potuerat  cum  onere,  si  quaedam 
merces  in  scapham  trajectae  sunt, 
ne  aut  extra  flumen  periclitetur, 
aut  in  ipso  ostio  vel  portu,  eaque 
scaplia  submersa  est,  ratio  haberi 
debet  inter  eos  qui  in  nave  merces 
salvas  habent,  cum  his  qui  in 
ecapha  perdiderunt,  proinde  tan- 
quam  si  jactura  facta  esset.  .  .  . 
Contra,  si  scapha  cum  parte  mer- 
cium  salva  est,  navis  periit,  ratio 
haberi  non  debet  eorum  qui  in 
navi  perdiderunt,  quia  jactus  in 
tributum  nave  salva  venit. 


3.  When  a  mast  or  other  appur- 
tenance of  the  ship  is  cut  down  for 
the  sake  of  removing'  a  common 
danger,  contribution  is  due((Z). 

4.  When  a  mast  is  cut,  that  the 
ship  with  the  goods  may  escape, 
the  equity  of  contribution  shall 
come  in  (e) . 

5.  If  a  ship  has  been  ransomed 
from  pirates,  Servius,  Ofilius, 
Labeo,  all  agree  that  there  shoidd 
be  a  contribution.  But  what  the 
robbers  have  taken  away,  he  must 
lose  whose  property  it  was:  nor 
shall  there  be  a  contribution  for 
him  who  has  ransomed  goods  of 
his  own  (/) . 

6.  If,  for  the  purpose  of  light- 
ening a  laden  ship,  because  she 
cannot  enter  a  river  or  haven  with 
her  cargo  on  board,  some  of  the 
goods  are  transhipped  in  a  lighter, 
to  avert  danger  either  from  re- 
maining outside  or  in  the  harbour 
or  port  itself,  and  if  the  lighter  is 
sunk,  a  contribution  shall  be  made 
between  those  who  have  their 
goods  safe  in  the  ship,  and  those 
who  have  lost  theirs  in  the  lighter, 
just  as  if  there  had  been  a 
jettison. 

If,  on  the  other  hand,  the  lighter 
with  a  part  of  the  goods  is  saved, 
and  the  ship  perishes,  there  shall 
not  be  a  contribution  towards  the 


{d)  1  Pard.  107. 

[e]  Fr.  5,  H  :   1  Pard.  108. 

(/)  Fr.  2,  §  3;   1  Pard.  106. 


THE  ROMAN  CIVIL  LAW. 


413 


■.  .  .  Quid  enim  interest,  jacta- 
tas  res  meas  amiserim,  an  nudatas 
deteriores  habere  coeperim?  Nam 
sicut  ei  qui  perdiderit  subvenitur, 
ita  et  ei  subveniri  oportet  qui  dete- 
riores propter  jactum  res  habere 
coeperit. 


7.  Navis  adversa  tempestate  de- 
pressa,  ictu  fulminis  deustis  arma- 
mentis  et  arbore  et  antenna,  Hip- 
ponem  delata  est,  ibique  tumultu- 
ariis  armamentis  ad  praesens  com- 
paratis,  Ostiam  navigavit  et  onus 
integrum  pertulit.  Quaesitum  est 
an  hi  quorum  onus  f  uit,  nautae  pro 
damno  conferre  debeant.  Eespon- 
dit  non  debere:  hie  enim  sumptus 
instruendae  magis  navis  quam 
conservandarum  mercium  gratia 
f actus  est. 


8.  Cum  depressa  navis  aut  de- 
jecta esset,  quod  quisque  ex  ea 
suum  servasset,  sibi  servare  res- 
pondit,  tanquam  ex  incendio. 


loss  of  those  in  the  ship,  on  the 
plea  that  a  jettison  would  have 
been  contributed  for  if  the  ship 
had  been  saved  (g). 

.  .  .  ^\"hat  difference  does  it 
make,  whether  by  a  jettison  I  lose 
my  goods,  or  by  an  exposure  of 
them  for  the  purpose  I  receive 
them  damaged?  As  he  who  loses 
them  is  compensated,  so  compen- 
sation should  be  made  to  him 
who  receives  his  goods  damaged 
by  reason  of  the  jettison  (/i). 

7.  A  ship  damaged  in  a  storm, 
her  mast  and  yard  having  been 
struck  by  lightning,  was  taken  into 
Hippo,  and  having  there  been 
equipped  for  the  occasion  with 
temporary  spars  and  gear,  per- 
formed her  voyage  to  Ostia  and 
delivered  her  cargo  undamaged. 
The  question  was  raised  whether 
the  owners  of  the  cargo  should 
contribute  towards  the  ship- 
owner's loss:  and  it  was  deter- 
mined that  they  should  not:  for 
these  expenses  were  incurred 
rather  for  the  purpose  of  re- 
fitting the  ship  than  of  preserving 
the  cargo  (i) . 

8.  When  a  ship  is  sunk  or 
wrecked,  whatever  of  his  own  pro- 
perty each  owner  may  have  saved, 
he  shall  keep  for  himself,  as  if 
rescued  from  a  fire  (fc) . 


iff)  Fr.  4;    1  Pard.  107. 
(A)  Fr.  4,  §  2  ;   1  Pard.  108. 
(i)  Fr.  6;    1  Pard.  108. 
(A-)  Fr.  7  ;   1  Pard.  108. 


414 


APPENDIX  A. 


Section  2.     computation  of  losses  and  contributing  interests. 


9.  Poiiioautem  pro  aestimatione 
rerum  quae  salvae  sunt,  et  earum 
quae  amissae  sunt,  praestari  debet: 
nee  ad  rem  pertinet,  si  hae  quae 
amissae  sunt  pluris  venire  pote- 
runt,  quoniam  detrimenti,  nan 
lucri,  fit  praestatio.  Sed  in  his 
rebus  quarum  nomine  conferen- 
-dum  est,  aestimatio  debet  baberi, 
non  quanti  cmptae  sint,  sed  quanti 
venire  possunt. 


10.  Amissae  navis  damnum  colla- 
tionis  consortio  non  sarcitur  per 
80?  qui  merces  suas  nauf ragio  libe- 
raverunt;  nam  hujus  aequitatem 
tunc  admitti  placuit,  cum  j actus 
remedio  caeteris  in  communi  peri- 
..culo,  salva  nave,  eonsultum  est. 


11.  Cum  j  actus  de  nave  f  actus 
est,  et  alicujus  res  quae  in  navi  re- 
manserunt  deteriores  factae  sunt, 
videndum  an  conferre  eog-endus  sit, 
quia  non  debet  duplici  damno  one- 
rari,  et  collationis,  et  quod  res  de- 
teriores   factae  sunt.     Sed   defen- 

.dendum  est,  hunc  conferre  debere 
pretio  praesente  rerum:  itaque, 
verbi    gratia,  si    \dcenum    merces 

.duorum  fuerunt,  et  alterius  aspar- 
gine    decem    esse    coeperunt,    ille 

■cujus  res  integrae  sunt,  pro  viginti 

-conferat,  hie  pro  decem. 


9.  All  apportionment  is  to  be 
made  according  to  the  valuation 
of  the  property  saved  and  of  that 
sacrificed:  nor  does  it  affect  the 
case  if  that  which  Avas  sacrifioed 
might  have  been  sold  at  a  profit, 
since  the  compensation  is  made  for 
loss  sustained,  not  for  expected 
gain.  But  for  the  contributing 
values  the  estimate  is  to  be  taken, 
not  on  what  they  cost,  but  on  what 
they  might  have  been  sold  for  (I). 

10.  If  a  ship  is  cast  away,  the 
loss  shall  not  be  borne  by  a  contri- 
bution on  the  part  of  those  who 
have  rescued  their  goods  from  the 
shipwreck;  for  this  equitable  right 
is  only  admissible  when  a  jettison 
has  been  purposely  made  for  rescu- 
ing the  remainder  in  a  common 
danger,  and  A\hen  the  ship  is 
saved  (vi) . 

11.  When  a  jettison  has  been 
made  from  a  ship,  and  some  of  the 
goods  remaining  in  the  ship  are 
damaged,  it  is  to  be  considered 
Avhether  the  owner  of  those  goods 
shall  be  compelled  to  contribute, 
seeing  that  he  should  not  be  bur- 
dened with  a  double  loss,  both  of 
the  contribution  and  of  the  damage 
done  to  his  goods.  The  right  view 
is,  that  he  should  contribute  upon 
the  present  value  of  his  goods: 
thus,  for  example,  if  two  men  liad 
goods  each  worth  twenty,  and  one 
b}-  wetting    was    brought    to    the 


(/)  Fr.  2,  §  4  ;    1  Pard.  106. 
(ffi)  Fr.  5;   1  Pard.  108. 


THE  ROMAN  CIVIL  LAW. 


415 


Potest  tamen  dici  etiam  ilia  sen- 
tentia,  distinguentibu.s  nobis  de- 
teriores  ex  qua  causa  factae  sunt; 
id  est,  utrum  propter  jacta  nudatis 
rebus  damnum  secutum  est,  an 
vero  alia  ex  causa,  veluti  quod 
alicubi  jacebant  merces  in  angulo 
aliquo,  et  unda  penetravit;  tunc 
•enim  conferre  debebit:  an  ex 
priore  causa,  eollationis  onus  pati 
non  debet,  quia  jactus  etiam  hunc 
laesit.  Adliuc  numquid  et  si  as- 
pargine  propter  jactum  res  dete- 
riores  factae  sunt?  Sed  distinctic 
subtilior  adhibenda  est,  quid  plus 
sit  in  damuo,  an  in  collatione:  si, 
verbi  gratia,  hae  res  viginti  fue- 
runt,  et  collatio  <|uidem  facit 
•decern,  damnum  aulem  duo;  de- 
ducto  hoc  quod  damnum  passus 
est,  reliquum  conferre  debeat? 
Quid  ergo,  si  plus  in  damno  erit 
quam  in  collatione,  utputa  decern 
aureis  res  deteriores  factae  sunt, 
duo  autem  eollationis  .sunt?  Tndu- 
bitate  utrumque  onus  pati  non  de- 
bet. Sed  hie  videanms  num  et 
ipsi  conferre  oporteat:  qu.id  enim 
interest,  &c. 


value  of  ten,  he  whose  goods  are 
sound  .should  contribute  on  twenty, 
the  other  on  ten. 

In  giving  this  judgment,  how- 
ever, a  distinction  should  be  made 
according-  to  the  cause  of  the  dete- 
rioration; that  is,  whether  the 
damage  to  the  goods  arose  from 
their  having  been  exposed  on  ac- 
count of  the  jettison,  or  from  some 
other  cause,  such  as,  that  the  goods 
were  stowed  in  some  corner  where 
the  water  penetrated:  in  the  latter 
case,  they  should  contribute ;  in  the 
former  case  they  should  be  relieved 
from  this  burden,  since  their  owmer 
is  himself  a  sufferer  by  the  jettison. 
Again,  how  if  it  is  by  Avetting  on 
account  of  the  jettison  that  the 
goods  were  damaged?  Here  a 
more  subtle  distinction  is  to  he 
drawn,  as  to  which  is  most,  the 
damage  or  the  contribution.  If, 
for  instance,  these  goods  were 
worth  twenty,  and  the  contribution 
would  make  ten,  but  the  damag-e 
two ;  deducting  from  this  value  the 
amount  of  the  damage,  should  the 
remainder  contribute?  How,  again, 
if  the  damage  is  more  than  the 
contribution:  suppose  the  gx)ods  to 
be  deteriorated  by  ten  pounds, 
while  ;he  contribution  is  two?  Un- 
doubtedly the  owner  ought  not  to 
bear  both  burdens.  But  here  we 
have  to  see  whether  contribution 
should  not  be  made  to  him:  for 
what  difference  does  it  make.  &c. 
(Ante,  No.  6.)  (n). 


(w)  Fr.  4.^2;  1  Pard.  lOS.  The  distinctions  here  suL'jJrested  seem  to  indicate  that 
the  simple  remedy  for  all  these  difficulties  now  universal,  vi/.,  the  bringing  in  tlie 
amount  made  goud  a-;  a  ooutrihutor,  had  not  at  this  time  .suggested  itself. 


416 


APPENDIX  A. 


12.  Si  navis  quae  in  tempestate 
jactu  niercium  unius  mercatoris 
levata  est,  in  alio  loco  submersa  est, 
et  aliquorum  mercatorum  merces 
per  urinatores  extractae  sunt  data 
mercede,  rationem  liaberi  debere 
ejus  cujus  merces  in  navig-atione 
levandae  navis  causa  jactae  sunt, 
ab  his  qui  postea  sua  per  urina- 
tores servaverunt,  Sabinus  aeque 
respondit:  eorum  vero  qui  ita  ser- 
vaverunt, invicem  rationem  haberi 
non  debere  ab  eo  qui  in  navig-a- 
tione jactum  fecit,  si  quaedam  ex 
his  mercibus  per  urinatores  extrac- 
tae sunt;  eorum  enim  merces  non 
possunt  videri  servandae  navis 
causa  jactae  esse,  quae  periit. 


13.  Cum  in  eadem  nave  varia 
mercium  genera  complures  merca- 
tores  coegissent,  praetereaque 
multi  vectores  servi  liberique  in  ea 
navigarent,  tempestate  gravi  orta, 
necessario  jactura  facta  erat. 
Quaesita  deinde  sunt  haec:  an 
omnes  jacturam  praestare  opor- 
teat;  et  si  qui  tales  merces 
imposuissent  quibus  navis  non 
oneraretur,  velut  gemmas,  mar- 
garitas,  et  quae  portio  praestanda 
est;  et  an  etiam  pro  liberis  capiti- 
bus  dari  oporteat,  et  qua  actione 
ea  res  expediri  possit.  Placuit, 
omnes  quorum  interfuisset  jactu- 
ram fieri  conferre  oportere,  quia  id 
tributum  ob  servatam  rem  debe- 
rent,  itaque  dominum  etiam  navis 
pro  portion3  obligatum  es.se;   jac- 


12.  If  a  ship,  which  in  a  tempest 
has  been  relieved  by  the  jettison  of 
one  man's  goods,  shall  aftervpards 
in  another  place  be  sunk,  and  the 
goods  of  some  merchants  are 
brought  up  by  divers  for  a  stated 
reward,  it  is  rightly  held  by 
Sabinus  that  he  who.se  goods  were 
jettisoned  to  save  the  ship  is  en- 
titled to  contribution  from  those 
who  afterwards  recovered  theirs 
by  means  of  divers:  but,  on  the 
other  hand,  that  there  shall  be  no 
contribution  from  him  whose  goods 
had  been  jettisoned  towards  those 
whose  goods  were  rescued  by  the 
divers;  for  these  last  goods  cannot 
be  said  to  have  been  cast  out  for 
the  sake  of  preserving  the  ship 
which  perished  (o) . 

13.  Where  in  the  same  ship  a 
number  of  merchants  had  shipped 
various  kinds  of  goods,  and  also 
many  passengers,  slaves  and  free,, 
were  on  board,  a  violent  storm 
having  arisen,  it  was  necessary  to- 
make  a  jettison.  Hereupon  the  fol- 
lowing questions  arose:  whether 
all  should  take  part  in  the  contri- 
bution? whether  those  who  had  on 
board  such  goods  as  were  no- 
burden  to  the  ship,  as  gems  or 
pearls,  should  contribute,  and  if  so, 
in  what  proportions;  whether  the 
lives  even  of  freemen  should  be 
taken  account  of;  and  in  what 
form  of  action  the  matter  should 
be  settled?  It  was  determined, 
that  all  to  whose  interest  it  was 
that  the  jettison  should  be  made 


(o)  Fr.  4.  -^U  :   1  Pard.  107. 


THE  ROMAN  CIVIL  LAW. 


417 


turae  euramam  pro  reruni  pretio 
distribui  oportet;  corporum  libe- 
rorum  aestimationeni  nullani  fieri 
posse;  ex  conducto  dominos  rerum 
amissarum  cum  nauta,  id  est,  cum 
magistro,  acturos.  Itidem  ag'ita- 
tum  est  an  etiam  veslimentoriim 
cujusque  et  annulorum  aestimati- 
onem  fieri  oporteat;  et  omnium 
visum  est,  nisi  si  qua  consumendi 
causa  imposita  forent,  quo  in  nu- 
mero  essent  cibaria,  eo  magis, 
quod,  si  quando  ea  defecerint  in 
navigalionem,  quod  quisque  habe- 
ret  in  commune  conferret. 


14.  Servorum  quoque  qui  in 
mare  perierunt,  non  magis  aesti- 
matio  facienda  est,  quam  si  qui 
aegri  in  nave  decesserint,  aut 
aliqui  sese  praeeipitaverint. 


15.  Si  ree  quae  jactae  sunt  ap- 
paruerint,  exoneratur  collatio  : 
quod  si  jam  contributio  facta  sit, 
tunc  hi  qui  solverint  agent  ex 
locato  cum  magistro,  ut  is  ex  con- 
ducto experiatur,  et  quod  exegerit 
reddat. 


should  contribute,  because  they 
owed  this  ransom  on  account  of 
their  property  preserved;  there- 
fore that  the  master  of  the  ship  was 
likewise  bound  for  his  proportion; 
that  the  amount  of  the  jettison 
should  be  distributed  rateably  on 
the  values  of  the  property;  that 
freemen's  lives  could  have  no  value 
set  upon  them;  that  tlie  owners  of 
the  goods  cast  over  must  proceed 
against  the  ma.ster  of  the  ship  ex 
conducto  (p) .  At  the  same  time  it 
was  discussed  whether  the  wearing- 
apparel  and  rings  of  those  on  board 
were  to  be  valued;  and  it  was  de- 
termined that  everything:  should, 
except  such  things  as  were  put  on 
board  in  order  to  be  consumed, 
under  which  head  came  provisions ; 
and  this  so  much  the  more  because, 
in  case  of  deficiency  while  at  sea, 
whatever  each  one  had  was 
brought  into  the  common  stock  (q) . 

14.  As  for  slaves  who  perished 
in  the  sea,  no  greater  valuation  is 
to  be  set  on  them  than  if  they  had 
died  of  disease  on  shipboard,  or 
had  thrown  themselves  into  the 
sea  (r) . 

15.  If  g-oods  which  have  been 
jettisoned  are  recovered,  the  con- 
tribution is  discharged:  but  if  the 
contribution  has  already  been 
made,  then  those  who  have  paid  it 
may  proceed  ex  locato  against  the 
master,    that    he     may    take     his 


(p)  See  note  (u),  p.  418. 

{(/)  Fr.  2,  §  2;   1  Pard.  105  —  106. 

(r)  Fr.  2,  §  5;   1  Pard.  lOG. 


E  E 


418 


APPENDIX  A. 


Res  autem  jacta  domini  manet, 
nee  fit  apprehcndentis,  quia  pro 
derelicto  non  habetur. 


course    ex    conducto,    and   refund 
what  he  had  demanded  (s). 

The  goods  jettisoned  however 
remain  the  property  of  their  first 
owners,  for  they  are  not  to  be 
treated  as  derelict  (i). 


Section  3.     remedies  and  mode  of  procedure. 


16.  Si,  laborante  nave,  jactus 
factus  est,  amissarum  mercium 
domini,  si  mercedcs  vehendas  lo- 
caverant,  ex  locate  cum  mag-istro 
navis  agere  debent;  is  deinde,  cum 
reliquis,  quorum  merces  salvae 
sunt,  ex  conducto,  ut  detrimentum 
pro  portione  communicetur,  agere 
potest.  Servius  quidem  respondit, 
ex  locate  agere  cum  magistro  navis 
debere,  ut  caeterorum  vectorum 
merces  retineat,  donee  portionem 
damni  praestent.  Tmo,  etsi  re- 
tineat merces  magister,  ultro  ex 
locate  habiturus  est  actionem  cum 
vectoribus:  quid  enim  si  vectores 
sint  qui  nullas  sarcinas  habeant? 
Plane  commodius  est,  si  sint,  re- 
tinere  eas.  At  si  non,  [et]  totam 
navem  conduxerit,  ex  conducto 
aget,  sicut  vectores  qui  loca  in 
nave  conduxerunt:  aequissimum 
enim  est  commune  detrimentum 
fieri  eorum  qui,  propter  amissas 
res  aliorum,  consecuti  sunt  ut 
merces  suas  salvas  haberent. 


16.  If,  when  the  ship  is  labour- 
ing, a  jettison  has  been  made,  the 
owners  of  the  goods  sacrificed,  if 
they  have  been  shipped  for  carri- 
age, should  proceed  ex  locato 
against  the  master;  who  can  then 
proceed  against  the  others,  whose 
goods  are  safe,  ex  conducto  (u), 
that  the  loss  may  be  distributed 
proportionally.  Servius,  however, 
is  of  opinion  that  they  should  pro- 
ceed ex  locato  against  the  master 
of  the  ship,  that  he  may  retain  the 
goods  of  the  other  merchants,  until 
they  have  paid  their  share  of  the 
loss.  Yes,  but  though  the  master 
may  retain  the  goods,  there  must 
likewise  be  a  right  of  action 
against  the  merchants  (vectores: 
see  note  (b),  p.  411),  ex  locato(x)  : 
for  how  if  there  are  merchants  Avho 
have  no  goods  on  board?  Clearly 
it  is  more  convenient,  if  there  are 
any,  to  retain  them.  But  if  not, 
and  if  he  has  freighted  the  whole 
ship,  let  him  proceed  ex  conducto, 


(.v)  Fr.  2,  §  7;   1  Pard.  107. 

[t)  Fr.  2,  §  8 ;   1  Pard.  107  ;  see  also  Fr.  8  ;    1  Pard.  109. 

{u)  Locator  is  he  who  lets  hia  ship,  or  room  in  it,  on  hire  ;  conductor,  he  who  engages 
to  pay  for  the  use  ;  hence  the  actio  ex  locato.  is  a  suit  against  the  master  or  owner  of  the 
ship,  to  enforce  the  obligations  undertaken  bj'-  him  in  letting  his  ship ;  the  actio  ex 
i'otiditcto  is  by  the  master  against  the  merchants,  to  enforce  the  duties  which  this  con- 
tract imposes  upon  them.     (Sandars,  Inst.  Just.  457.) 

{x)  This  apparently  should  be  ex  conducto.  Instances  of  this  confusion,  says  Par- 
dessus,  are  not  uncommon  in  the  Roman  law.     (1,  ]05,  n.  2.) 


THE  ROMAN  CIVIL  LAW. 


419 


17.  Si  quis  ex  vectoribus  sol- 
vendo  non  est,  hoc  detrimentum 
magistri  navis  non  erit:  nee  enim 
fortunas  cuj usque  nauta  excutere 
debet. 


as  on  passengers  who  have  hired 
places  in  a  ship:  for  it  is  most 
equitable  that  the  loss  should  fall 
in  common  amongst  those  who,  by 
means  of  the  sacrifice  of  other 
persons'  property,  have  succeeded 
in  obtaining  their  own  in  safety. 

17.  If  any  of  the  merchants  is 
insolvent,  this  loss  must  not  fall 
on  the  captain;  for  a  sailor  cannot 
be  expected  to  hunt  out  each  man's 
stabiKty. 


K  E  2 


420  APPENDIX  B. 


APPENDIX  B. 


CONSOLADO    DEL    MARE. 

It  may  be  convenient  in  this  place,  before  passing  from  classical  to 
modern  times,  to  give  some  brief  account  of  a  remarkable  treatise, 
written  in  the  Romance  dialect,  and  occupying  a  sort  of  intermediate 
place, — the  Consolado  or  Consulate  of  the  Sea.  There  is  great  uncer- 
tainty as  to  the  date,  or  even  country,  of  the  treatise,  but  it  may  be 
reasonably  conjectured  to  be  of  Spanish  origin,  and  certainly  not  later 
than  the  end  of  the  13th  century.  Its  title  would  seem  to  imply  that  it 
was  written  for  the  guidance  of  the  Consuls,  who,  from  very  early  times, 
exercised  maritime  jurisdiction  throughout  Europe.  Its  provisions  un- 
doubtedly became  the  basis  of  the  laws  actually  in  force  throughout 
Europe  (a).  The  first  forty-two  chapters  refer  to  the  election  of  the 
judges  of  the  Consular  Court  of  Valencia,  and  the  procedure  before 
them.  To  these  judges  a  special  jurisdiction  for  maritime  commerce 
was  granted,  in  1283,  by  King  Pedro  III.,  for  the  city  of  Valencia. 
Later  on,  in  No.  43,  is  found  a  statute  made  for  the  Island  of  Majorca, 
by  James  I.  of  Spain,  who  died  in  1275.  After  these,  and  some 
tabular  matter,  follows  the  Consolado  proper,  the  first  chapter  of  which 
is  numbered  46.  M.  Pardessus  found  the  missing  chapter  in  a  manu- 
script copy  in  the  Royal  Library  in  Paris.  This,  however,  leaves  it 
open  to  conjecture  that  the  veritable  Consolado  may  have  been  a 
separate  and  possibly  much  older  work,  written  by  a  private  person, 
and  adopted — very  much  as  the  laws  of  Oleron  were  written  into  our 
Black  Book  of  the  Admiralty — ^for  the  guidance  of  the  judges  of  this 
newly-constituted  Spanish  Court.  This  is  confirmed  by  the  character  of 
the  contents.  This  number  46  begins  as  follows: — Aci  comencen  les 
bones  costumes  de  la  mar :  "  Thus  begin  the  good  customs  of  the  sea." 
It  continues:  "  Here  are  the  good  establishments  and  the  good  customs 
which  have  to  do  with  the  sea,  which  learned  men  who  have  gone  through' 
the  world  began  to  give  to  our  ancestors;  which  tliey  did  by  books  of 
knowledge  of  the  good  customs.  In  the  which  we  can  find,  what  the 
master  of  the  ship  should  do  to  the  merchant,  and  to  the  mariner,  and 

(a)  2Pard.  1-2. 


C0N80LAD0  DEL  MAKE.  421 

to  the  pil^ims  or  to  any  other  man  who  shall  go  in  the  ship ;  and  also 
what  the  merchant  should  do  to  the  master  of  the  ship,  and  the  mariner 
to  the  master  of  the  ship  or  boat,  and  the  pilgrims  likewise.  For 
pilgrim  (pelegri)  is  called,  every  man  who  ought  to  pay  freight  for 
his  person  and  not  for  g-oods  "  (b). 

Then  follows  a  detailed  and  very  curious  set  of  directions  iov  one  who 
intended  to  build  a  ship,  detailing-  the  steps  to  be  taken  from  the  very 
beginning.  It  is  in  many  respects  remarkably  similar  to  the  most 
modern  system  of  proceeding  in  setting  on  foot  a  single-ship  company 
for  a  valuable  iron  or  steel  steamship,  to  be  held  in  shares,  with  pre- 
ference or  debenture  stock.  This  ])art  of  the  subject  is  touched  upon 
in  Chap.  VII. 

The  projector,  after  drawing  out  his  scheme  determining  the  length, 
breadth,  and  tonnage  of  his  intended  ship,  how  much  he  will  take 
himself,  and  into  how  many  shares  he  will  divide  her,  is  to  bring  her 
out  among  his  friends,  or,  as  we  should  say,  put  her  on  the  market. 
When  this  is  happily  arranged,  and  the  ship  built  and  laden  with 
merchandise,  there  go  on  board  the  projector,  builder,  managing  owner, 
and  usually  shipmaster,  all  in  one;  the  part-owners  (personers),  and, 
apparently  as  a  matter  of  course,  the  prestadors,  creditors,  or  those 
who  have  supplied  what  was  wanting  of  capital  for  the  building  or 
outfit;  and  with  them  the  owners  of  the  cargo  and  the  pilgrims  or 
passeng'^rs.  The  ship  was  not  trusted  alone  by  anybody'  concerned. 
Then  follows  an  acxiount  of  the  voyage,  and  the  things  to  be  done, 
whether  the  voyage  is  prosperouB  or  adverse.  Under  the  latter  head 
follows  a  good  deal  concerning  general  average;  but  not  a  word  about 
insurance,  this  latter  contract  not  having-  at  that  time  been  invented. 

From  this  sketch  of  the  contents  of  the  Consolado,  it  is  easy  to 
understand  the  conclusion  of  M.  Pardessus,  that  the  Consolado  was  not 
a  law  or  body  of  laws  authoritatively  laid  down,  but  a  mere  treatise, 
compiled,  no  doubt,  with  great  learning  and  good  sen.se,  but  not  always 
([uite  sharply  distinguishing  established  customs  from  what  the  author 
has  adopted  for  himself  as  right  according  to  the  natiu-e  of  things  (c). 


[h)  2  Pard.  49. 

(f)  "The  Consolado,"  says  Pardessus,  "more  (>xteiided  than  the  compilation  of 
Oleron,  offering  to  the  navigators  of  the  Mediterranean  a  trsinne  of  the  laws  which  each 
of  them  practised  iu  his  own  country,  more  complete  than  any  of  these  laws,  since  it 
borrowed  from  each  what  was  wanting  in  the  others,  and  constituted  them  a  whole, 
must  have  been  appreciated,  sought  after,  and  by  the  sole  authority  of  good  sense  and 
wisdom,  have  served  as  a  guide  in  the  commercial  tribunals.  This  it  is  which  explains 
the  eagerness  with  which  editions  of  it  were  multiplied  after  the  invention  of  printing." 
(2  Pard.  20.) 


422 


APPENDIX  C. 


APPENDIX  C. 


THE  LAW  OF  THE  AEGENTINE  REPUBLIC. 

The  Code  of  the  Argentine  Eepublic  is  modelled  on  that  of  Spain. 
The  existing  Code,  from  which  tlie  following  extracts  are  taken,  was 
sanctioned  in  1889,  and  came  into  force  in  1890.  So  far  as  general 
average  is  concerned,  it  reproduces  almost  without  alteration  the  pro- 
visions of  the  Code  of  Buenos  Ayres,  which  was  sanctioned  by  the 
provincial  Legislature  in  1857,  and  became  the  law  of  the  Republic 
in  1862. 


TIT.  XIY. 

De  las  Averias. 

Cap.  1. 

De  la  naturaleza  y  clasificaeion  de 
las  averias. 

Art.  1312.  Se  consideran  averias 
todos  los  gastos  estraordinarios 
que  se  hacen  en  favor  del 
buque  6  del  cargamento  6  de 
ambas  cosas  juntamente;  y  todos 
los  danos  que  sobrevienen  al  buque 
6  a  la  carga,  con  occasion  del  viaje 
6  durante  el,  hasta  la  Uegada  y 
descarga. 

Art.  1313.  En  defecto  de  con- 
venciones  especiales  espresas  en 
las  polizas  de  fletamento  6  en  los 
conocimientos,  las  averias  se  pagan 
conforme  a  las  disposiciones  de 
este  Codigo. 

Art.  1314.  Las  averias  son  de 
dos  clases: — gruesas  6  comunes,  y 
simples  6  particulares . 


TITLE  XIV. 

Of  Average. 

Cap.  1. 

Oj  the  nature  and  classification  of 
Averages. 

Art.  1312.  All  the  extraordinary 
expenses  incurred  for  the  benefit 
of  the  ship  or  cargo  or  of  both 
conjointly,  and  all  the  damages 
suffered  by  ship  or  cargo  by  reason 
of,  or  during,  the  voyage,  until 
the  arrival  and  discharge,  are  con- 
sidered averages. 

Art.  1313.  Failing  special  agree- 
ments in  the  charter-parties,  or  in 
the  bills  of  lading,  averages  are  to 
be  paid  according  to  this  Code. 


Art.  1314.  Averages  are  of  two 
classes: — General  or  common;  and 
simple  or  particidar. 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


423 


El  importe  de  las  averias 
comunes  se  reparte  proporcional- 
mente  entre  el  buque,  su  flete  y 
la  carga.  El  de  las  particulares 
se  soporta  por  el  dueiio  de  la  cosa 
que  ocasiono  el  gasto  6  recibio  el 
dano. 


Art.  1315.  Nosereputan  averias 
sino  simples  gastos,  a  cargo  del 
buque:  — 

1°.  Los  pilotajes  de  costas  y 
puertos ; 

2°.  Los  gastos  de  lanchas  y 
remolques,  si  por  falta  de  agua  no 
puede  el  buque  emprender  el  viaje 
del  lugar  de  la  partida  con  la 
carga  entera,  ni  Uegar  al  desfcino, 
sin  alijar  el  buque; 

3°.  Los  derechos  de  anclaje, 
visita  y  demas  llamadas  de  puerto; 

4°.  Los  fletes  de  lanchas  hasta 
poner  los  efectos  en  el  muelle,  si  no 
se  hubiese  pactado  otra  cosa,  segun 
el  conocimiento  6  la  poliza  de 
fletamento ; 

5^.  En  general,  cualquier  otro 
gasto  comun  a  la  navegacion  que 
no  sea  esfraordinario  y  eventual. 


Art.  1316.  Averias  gruesas  6 
comunes  son  en  general  todos  los 
danos  causados  deliberadamente  en 
caso  de  peligro,  y  los  sufridos  como 
consccuencia  inmediata  de  esos 
sucesos,  asi  como  los  gastos  hechos 
en  iguales  circunstancias,  despues 


The  amount  of  the  general  aver- 
age is  divided  proportionately  be- 
tween ship,  freight,  and  cargo 
(Art.  1338;.  The  amount  of  par- 
ticular average  is .  borne  by  the 
owner  of  whatsoever  has  occa- 
sioned the  expense  or  received  the 
damage. 

Art.  1315.  The  following-  are 
deemed  not  to  be  averages,  but 
ordinary  expenses  to  be  borne  by 
the  ship:  — 

1.  Coast  and  harbour  pilotage. 


2.  Costs  of  lighterage  and  tow- 
age, if  from  want  of  water  the  ship 
cannot  start  from  the  place  of  de- 
parture with  all  her  cargo  in,  or 
arrive  at  her  destination  without 
lightening  the  ship  (Art.  1320). 

3.  Dues  for  anchorage,  visas, 
and  other  such  port  charges. 

4.  Hire  of  lighters  to  take  the 
goods  to  the  wharf,  unless  other- 
wise agi-eed  in  the  bill  of  lading' 
or  charter-party. 

5.  In  general,  any  other  ex- 
pense incident  to  the  voyage,  which 
is  not  extraordinary  or  accidental 
(Art.  1313). 

Art.  1316.  Gross  or  general 
averao-e  coramonlv  consists  of  all 
the  damages  deliberately  incurred 
in  ease  of  danger,  and  those  suf- 
fered as  the  immediate  conse- 
quence of  these  measures,  and  also 
expenses  incurred  in  such  circum- 


424 


APPENDIX  C. 


de  deliberacioiies  motivadas,  para 
la  salvacion  comun  de  las  personas 
6  del  buque  y  cargamento  conjunta 
6  separadameiite,  desde  su  carga  y 
partida  liasta  su  vuelta  y  desearga. 

Salva  la  aplicacion  de  esta  regla 
general  en  los  casos  que  (>curran, 
se  declara  especialaiente  averia 
coniun:  — 


1°.  Todo  lo  que  se  da  a  ene- 
niigos,  corsarios  6  piratas  por  via 
de  icomposicion  para  rescatar  el 
buque  y  su  cargamento,  junta  6 
separadamente ; 


stances,  after  due  deliberation,  for 
the  common  safety  of  lives,  or  of 
ship  and  cargo  conjointly  or  sepa- 
rately, from  the  time  of  the  loading 
and  departure  until  the  arrival  and 
discharge . 

Without  prejudice  to  the  appli- 
cation of  this  general  rule  to  cases 
that  may  occur,  the  following  are 
specially  declared    to    be    general 


average;- 


1 .  Everything  given  to  enemies, 
corsairs,  or  pirates,  by  way  of  com- 
position, to  ransom  ship  and  cargo, 
conjointly  or  separately. 


2°.  Las  cosas  que  se  arrojan  al  2.  Everything  thrown  overboard 

mar  para  alijar  el  buque,  ya  per-  to     lighten     the     ship,     whether 

tenezcan  al  cargamento,  al  buque  belonging  to  the  cargo,  ship,  or 

6  a  la  tripulacion;  '  crew  (a). 


3°.  Los  mastiles,  cables,  velas  y 
otras  aparejos  que  de  proposito  se 
rompan  e  inutilicen,  6  se  corten  6 
partan  forzando  vela  para  la  salva- 
cion del  buque  y  carga; 

4°.  Las  anclas,  amarras  y  demas 
cosas  que  se  abandonan  para 
salvacion  6  ventaja  comun; 

3°.  El  dano  que  de  la  echazon 
resulte  a  los  efeetos  que  se  con- 
serven  en  el  buque; 

6°.  El  dano  que  se  cause  al 
buque  6  a  algunos  efeetos  del 
cargamento,  por  haber  hecho  de 
proposito  alguna  abertura  en  el 
buque  para  desaguarlo,  6  para 
estraer  y  salvar  los  efeetos  del 
cargamento ; 


3.  Masts,  cables,  and  other  ap- 
parel purposely  broken  and  made 
useless,  or  cut  away  or  sprung 
while  crowding  sail  for  the  safety 
of  ship  and  cargo . 

4.  Anchors,  cables,  and  other 
thing's  abandoned  for  the  common 
safetj^  or  advantage. 

5.  Any  damage  caused  by  the 
jettison  to  the  goods  on  board. 


G.  Any  damage  caused  to  the 
ship  or  any  part  of  the  cargo  by 
voluntarily  making  some  opening 
in  the  ship,  to  clear  her  of  water, 
or  to  get  out  and  save  goods  of  the 
cargo . 


(a)  For  deck-loads,  compare  §  1344. 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


425 


7°.   La  curacioii,  manutencion  e  7.  Medical  attendance,  mainte- 

indemnizaciones  de  los  individuos  uance  and  indemnification  of-  any 

de  la  tripulacion  heridos  6  muti-  of  the  crew  hurt  or  maimer!  in  de- 

lados  on  defensa  del  buque;  fence  of  the  ship. 


8°.  La  indemnizacion  6  rescate 
de  los  individuos  de  la  tripulacion 
aprisionados  6  detenidos  durante 
el  servicio  que  prestaban  al  buque 
6  a  la  carga; 

9'^.  Los  sueldos  y  manutencion 
de  la  tripulacion  durante  la  arriba 
f orzosa ; 


8.  The  indemnification  or  ran- 
som of  any  of  the  crew  taken 
prisoners  or  detained  whilst  ren- 
dering service  to  ship  or  cargo. 


9.  Wages    and    maintenance  of 
crew  in  a  port  of  refuge. 


10°.  Los  derechos  de  pilotaje  y  10.   Pilotage,  and  other  expenses 

'Otros  de  entrada  y  salida  en  un  of  entering  and  leaving  a  port  of 

puerto  de  arribada  f orzosa;  '  refuge. 

11°.  Los  alquileres  dealmacenes  j       11.   The  hire  of  warehouses  in  a 

en  que  se  depositen,  en  puerto  de  port  of  refuge  to  store  such  goods 

arribada  forzosa,  los  efectos  que  no  ;  in    as    cannot    remain    on    board 

pudieren  continuar    a    bordo    du-  during  the  repairs  of  the  ship, 
rante  la  reparacion  del  buque: 


12°.  Los  gastos  de  reelamaeion 
de  buque  y  carga  hechos  coujunta- 
mente  por  el  capitan; 

13°.  Los  sueldos  y  manutencion 
de  los  individuos  de  la  tripulacion 
durante  esa  reelamaeion,  siempre 
que  el  buque  y  carga  sean  resti- 
tuidos ; 


12.  The  costs  of  reclamation  of 
ship  and  cargo  made  conjointly  by 
the  captain. 

18.  Wages  and  board  of  creAv 
during  the  reclamation,  provided 
that  the  ship  and  cargo  are  re- 
stored. 


14°.  Los  gastos  de  alijo  6  tras-  ,       14.   The  costs   of   lighterage  or 
Lordo  de  una  parre  del  eargamento      transhipment  of   any  part  of    the 


para  aligerar  el  buque  y  ponerlo 
en  estado  de  tomar  puerto  6  rada, 
con  el  fin  de  salvarlo  de  riesgo  de 
mar  6  de  enemis^os; 


cargo  to  lighten  the  vessel  so  as  to 
enable  her  to  enter  some  harbour 
or  roadstead,  with  a  view  of  saving 
her  from  a  peril  of  sea  or  from 
enemies . 


15°.  Los  daiios  que  acaeciei'en  a  '       15.    Any     damage     which     the 


426 


APPENDIX  C. 


los  efectos  por  la  descarga  y  re- 
earga  del  buque  en  peligro; 

16°.  Los  danos  que  sufriere  el 
casco  J  quilla  del  buque  que  de 
proposito  se  hace  varar,  para  im- 
pedir  su  perdida  total  6  su  apresa- 
miento ; 

17°.  Los  gastos  que  se  hagan 
para  poner  a  flote  el  buque  en- 
callado,  j  la  recompensa  por  ser- 
vicios  estraordinarios  hechos  para 
impedir  su  perdida  total  6  apresa- 
miento ; 

18°.  Las  perdidas  6  danos  sobre- 
venidos  a  los  efectos  que,  en  conse- 
cuencia  del  peligro,  se  ban  cargado 
en  lancbas  6  buques  menores; 

19°.  Los  sueldos  y  manutencion 
de  la  tripulacion,  si  el  buque  des- 
pues  de  empezado  el  viaje,  es  obli- 
gado  a  suspenderlo  por  orden  de 
potencia  estranjera  6  por  super- 
veniencia  de  guerra,  en  tanto  que 
el  buque  y  el  cargamento  no  sean 
exonerados  de  sus  obligaciones  re- 
ciprocas ; 

20°.  El  premio  del  prestamo  a 
la  gruesa,  tornado  para  cubrir  los 
gastos  que  se  consideran  averia 
comun,  y  el  premio  del  seguro  de 
esos  gastos; 

21°.  El  menoscabo  que  resultare 
en  el  valor  de  los  efectos  que  haya 
side  necesario  vender  en  el  puerto 
de  arribada  forzosa  para  hacer 
f rente  a  aquellos  gastos; 


goods  sustain  from  the  discharge 
or  reloading  of  a  ship  in  danger. 

16.  Any  damage  that  the  hull 
or  keel  of  a  vessel  may  suffer  from 
being  purposely  run  aground  to^ 
escape  total  loss  or  capture. 


17.  Expenses  incurred  in  float- 
ing a  stranded  vessel,  and  the  re- 
ward for  extraordinary  services 
rendered  to  prevent  her  total  loss 
or  capture. 


18.  Any  loss  or  damage    hap- 
pening to  the  goods  which,  on  ac- 
count of  danger,  have  been  loaded 
on  lighters  or  small  boats. 

19.  Wages  and  board  of  the 
crew,  if  after  the  voyage  is  begun,^ 
the  ship  is  obliged  to  svispend  it 
by  order  of  a  foreign  power,  or 
from  war  being  declared,  whilst  the 
ship  and  cargo  are  not  exonerated 
from  their  reciprocal  obligations. 


20.  The  premium  of  a  bottomry 
bond  taken  to  cover  expenses 
which  are  counted  general  aver- 
age, and  the  insurance  premium 
on  these  expenses. 

21.  The  deterioration  in  the 
value  of  the  goods  necessarily 
sold  at  the  port  of  refuge  to  pay 
these  expenses. 


22°.  Las  costas  judiciales  para  22.  Judicial   costs   for   the   ad- 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


427 


la  clasifieacion  j  distribucion  de 
la  averia  comun; 

23°.  Los  gastos  de  una  cuaren- 
tena  estraordinaria,  imprevista  al 
tiempo  de  la  celebracion  del  fleta- 
mento,  incluso  los  sueldos  y  manu- 
tencion  de  los  individuos  de  la 
tripulacion. 

Art.  1317.  Si  para  cortar  un 
incendio  en  alg-un  puerto  6  rada,  se 
mandase  echar  a  pique  algun 
buque,  como  medida  necesaria  para 
salvar  los  demas,  se  considerara 
esa  perdida  como  averia  comun,  a 
cuyo  pago  contribuiran  los  demas 
buques  salvados. 

Art.  1318.  Los  gastos  causados 
por  vicios  internes  del  buque,  por 
su  innavegabilidad,  6  por  falta  6 
negligencia  del  capitan  6  indivi- 
duos de  la  tripulacion,  no  se  re- 
putan  averia  gruesa,  aunque  hayan, 
side  lieclios  voluntariamente,  y  en 
virtud  de  deliberaciones  motivadas 
para  beneficio  del  buque  y  carga- 
mento . 

Todos  esos  gastos  son  de  cargo 
esclusivo  del  capitan  6  del  buque. 


Art.  1319.  Averia  particular  es, 
en  general,  todo  gasto  6  dano  que 
no  ha  side  liecho  para  utilidad 
comun,  y  que  se  sufre  por  el  buque 
6  la  carga,  mientras  duran  los 
riesgos. 

Se  considera  esj)ecialmenle 
averia  particular: 

1°.  Los  daiios  que  sobrevienen 
al  cargamento  6  al  buque  por  vicio 


justment  and  distribution  of  gene- 
ral average. 

23.  The  costs  of  an  extraordi- 
nary quarantine,  unforeseen  at  the 
time  when  the  charter-party  was 
signed,  including  board  and  wages 
of  the  crew. 


Art.  1317.  If,  to  stop  a  fire  in 
some  port  or  roadstead,  a  ship  is 
ordered  to  be  scuttled  as  a  neces- 
sary step  to  save  the  rest;  this  loss 
is  accounted  general  average,  to 
the  payment  of  which  the  other 
vessels  saved  must  contribute. 


Art.  1318.  Expenses  occasioned 
by  inherent  defects  of  the  ship,  by 
her  unseaworthiness,  or  by  some 
fault  or  negligence  of  the  captain 
or  of  any  of  the  crew,  are  not 
counted  as  general  average,  even 
though  voluntarily  incurred  after 
due  council  held,  for  the  good  of 
ship  and  cargo. 

All  these  expenses  are  to  be 
borne  exclusively  by  the  captain 
or  ship. 

Art.  1319.  Particular  average 
is,  in  general,  any  expense  or 
damage  that  has  not  been  incurred 
for  the  common  good,  and  that  is 
suffered  by  ship  and  cargo  during 
the  continuance  of  the  risks. 

The  following  in  particular  are 
accoujited  particular  average:  — 

1.  Damage  to  cargo  or  ship 
caused  by  inherent  vice,  accidents 


428 


APPENDIX  (J. 


propio  de  las  cosas,  por  accidente  1  of  the  sea,  vis  major,  or  accidental 

de  mar,  fuerza  mayor,  6  case  for-  |  circumstances. 

tuito; 


2°.  Los  gastos  heelios  para 
evitar  6  reparar  los  danos  a  que  se 
refiere  el  niimero  precedente; 

3°.  Los  gastos  de  reclamacion, 
sue  Id  OS  y  mauutencion  de  los  indi- 
viduos  de  la  tripulacion  rnientras 
aquella  se  sigue,  cuando  el  buque 
y  el  cargamento  son  reclamados 
separadamente ; 

4°.  La  reparacion  particular  de 
los  envases  y  gastos  heelios  para 
conservar  los  efectos  averiados,  a 
no  ser  que  el  dano  resulte  inme- 
diatameute  de  hecho  que  de  lugar 
a  averia  comun; 

.")°.  El  aumento  de  flete  y  los 
gastos  de  carga  y  descarga  que  se 
causan  en  el  caso  que  el  buque 
haya  sido  declarado  innavegable 
durante  el  viajc,  si  los  efectos  son 
trasportados  por  otro  buque,  segun 
lo  dispues'o  por  el  articulo  107o: 


6°.  Cualquier  daiio  que  resulte 
al  cargamento,  por  descuido,  falta 
6  barateria  del  capitan  6  de  la 
tripulacion,  sin  perjuicio  del 
derecho  del  proprietario,  contra  el 
capitan,  buque  y  fletes. 

Art.  1320.  Los  danos  que  sufren 
los  efectos  embareados  en  lanchas 
para  alijar  al  biique  en  caso  de 
peligro,  son  juzgados  conforme  a  I 
las  disposiciones    establecidas    en  I 
■este  capitulo,  segun    las    diversas  | 
•causas  de  que  el  dano  resulte.         | 


2.  Expenses  incurred  to  avoid 
or  repair  any  damage  specified  in 
the  preceding  paragraph. 

3.  The  costs  of  reclamation,  and 
the  wages  and  maintenance  of 
crew,  while  this  is  being  done, 
Avhen  the  ship  and  cargo  are  re- 
claimed separately. 


4.  The  particular  repairs  of  the 
substances  in  which  goods  are 
packed,  and  expenses  incurred  to 
preserve  damaged  goods,  unless 
the  damage  is  the  immediate  re- 
sult of  a  general  average  act. 

5.  The  increase  of  freight,  and 
the  expenses  of  loading  and  dis- 
charge which  may  be  caused  in  the 
case  of  the  ship  being  declared 
unseaworthy  during  the  voyage,  if 
the  goods  are  carried  on  by  anotlier. 
vessel,  according  to  the  rule  of 
Art.   1075. 

6.  Any  damage  to  the  cargo  re- 
sulting from  the  negligence,  fault, 
or  barratry  of  the  captain  or  orew. 
without  prejudice  to  the  rights  of 
the  cargo-owner  against  the  cap- 
tain, ship,  and  freights. 

Art.  1320.  Damage  suffered  by 
goods  shipjjed  on  lighters  to 
lighten  the  ship  in  case  of  danger 
(Art.  1315,  No.  2),  is  judged  by 
the  rules  laid  down  in  this  chapter, 
according  to  the  different  causes 
from  which  the  injury  proceeds. 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


429- 


Art.  i;321 .  Si  durante  la  travesia 
aconteciere  a  las  lanchas  6  a  los 
efectos  en  ellas  cargados,  un  daiio 
que  se  repute  averia  comun,  sera 
soportado  un  tercio  por  las  lanchas 
y  dos  tercios  por  los  efectos  que  se 
encuentren  a  su  bordo. 

Esos  dos  tercios  se  reparten  en 
seguida,  como  averia  comun,  sobre 
el  buque  principal,  el  importe  del 
flete,  y  el  cargamento  entero,  in- 
cluso  el  de  las  lanchas. 


Art.  1322.  Reciprocamente,  y 
hasta  el  momento  en  que  los  efectos 
cargados  en  las  lanchas  sean  des- 
embarcados  en  el  lugar  de  su 
destino  y  entregados  a  sus  con- 
sigjiatarios,  siguen  en  comuuion 
con  el  buque  principal  y  resto  del 
cfargamento,  y  contribuyen  a  las 
averias  comunes  que  hubieran 
sobre venido. 

Art.  1323.  Los  efectos  que  no  se 
encuentran  a  bordo,  sea  del  buque 
principal,  sea  de  las  embarcaciones 
menores,  destinadas  a  traspor- 
tarlos,  no  contribuyen  a  los  danos 
que  sucedieren  en  ese  tiempo  al 
buque  para  cuya  carga  son  des- 
tinados. 

Art.  1324.  Para  que  el  dano 
sufrido  por  el  buque  6  cargamento 
pueda  considerarse  averia  a  cargo 
del  asegurador,  es  necesario  que 
sea  examinado  por  dos  peritos 
arbitradores  que  declaren: 

1°.  La  causa  de  que  ha  pro- 
venido  el  dano; 


Art.  1321.  If,  during  their  pas- 
sage, there  should  happen  to  the 
lighters,  or  the  goods  on  board 
them,  any  damage  which  is 
reckoned  general  average,  a  third 
shall  be  borne  by  the  lighters,  and 
two-thirds  by  the  goods  on  board 
them.  The.se  two-thirds  are  to  be 
divided  afterwards  as  general 
average  between  the  ship,  the 
amount  of  freight,  and  the  entire 
cargo,  including  that  of  the 
lighters.     (Art.  1338.) 

Art.  1322.  Reciprocally,  and  up 
to  the  moment  when  the  goods 
shipped  on  the  lighters  are  vm- 
loaded  at  the  place  of  destination, 
and  delivered  to  their  consignees, 
they  remain  in  a  common  adven- 
ture with  the  ship  and  the  rest  of 
the  cargo,  and  contribute  to  any 
general  average  that  maj'  arise. 


Art.  1323.  Goods  that  are  not 
on  board  either  the  ship  or  the 
boats  intended  to  transport  them 
to  it,  do  not  contribute  to  any 
damage  that  may  occur  at  that 
time  to  the  ship  for  whose  cargo 
they  are  intended. 


Art.  1324.  In  order  that  damage 
sustained  by  the  ship  or  cargo 
shall  be  considered  average  for 
which  the  underwriter  is  liable,  it 
is  requisite  that  it  should  be  sur- 
veyed by  two  expert  arbitrators 
who  shall  declare: 

1.  The  cause  of  the  damage. 


430 


APPENDIX  C. 


2°.  La  parte  del  cargamento  que 
se  halle  averiada,  indicando  las 
marcas,  numeros  6  bultos; 

3°.  Cuanto  valen  los  objetos 
averiados,  y  cuanto  podra  importar 
su  reparacion,  6  reposicion,  si  se 
tratare  del  buque  6  de  sus  perte- 
nencias. 

Todas  estas  diligencias,  ex- 
amenes  y  reconocimientos  seran 
determinados  por  el  tribunal  de 
comercio  del  respectivo  distrito,  y 
practicados  con  citacion  de  los  in- 
teresados,  por  si  6  por  sus  repre- 
sentantes.  En  caso  de  ausencia  de 
las  partes  y  falta  de  apoderado, 
puede  el  Juez  nombrar  de  oficio 
persona  inteligente  e  idonea  que 
las  represente. 

Art.  1325.  En  el  arreglo  de  la 
averia  particular  que  debe  el  ase- 
gurador  pagar,  en  caso  de  seguro 
contra  todo  riesgo,  se  observaran 
las  disposiciones  siguientes: 

Todo  lo  que  fuere  saqueado,  per- 
dido  6  vendido  por  averiado  du- 
rante el  viaje,  se  estima  segun  el 
valor  de  la  factura,  y  en  defecto 
de  esta,  segun  el  valor  por  el  cual 
se  haya  celebrado  el  seguro,  con- 
forme  a  la  ley,  y  el  asegurador 
paga  el  importe; 

En  caso  de  Uegada  a  buen 
puerto,  si  los  efectos  se  encuentran 
averiados  en  todo  6  en  parte,  se 
determinera  por  peritos  arbitra- 
dores  cual  habria  sido  su  valor  si 
hubiesen  llegado  sin  averia,  y  cual 
su  valor  actual;  y  el  asegurador 
pagara  una  cuota  del  valor  del 
■seguro,  en  proporcion  de  la  difer- 


2.  What  portion  of  the  cargo  is 
injured;  specifying  marks,  num- 
bers or  bulks. 

3.  The  value  of  the  damaged 
articles,  and  the  cost  of  repairing 
or  replacing  them,  if  they  belong 
to  the  ship  or  its  appurtenances. 

All  these  measures,  examina- 
tions and  investigations  shall  be 
directed  by  the  tribunal  of  com- 
merce of  the  district,  and  carried 
out  after  citation  of  the  parties 
interested  either  personally  or  by 
their  representatives.  In  case  the 
parties  are  absent  and  unrepre- 
sented, the  judge  may  ex  officio 
appoint  an  intelligent  and  suitable 
person  to  represent  them. 

Art.  1325.  In  the  adjustment  of 
particular  average,  which  an  in- 
surer against  all  risks  must  pay, 
the  following  rules  shall  be  ob- 
served:— 

Everything  that  has  been  pil- 
laged, lost,  or  sold  on  account  of 
damage  diuing  the  voyage,  shall 
be  valued  according  to  the  invoice 
value,  and,  in  default  of  such,  ac- 
cording to  the  value  for  which  it 
was  insured  according  to  law,  and 
the  insurer  shall  pay  the  value. 

In  case  of  arrival  at  a  safe  port, 
if  either  all  or  part  of  the  goods 
are  damaged,  expert  arbitrators 
shall  determine  what  their  value 
would  have  been  if  they  had  ar- 
rived without  damage,  and  what 
is  their  actual  value;  and  the  in- 
surer shall  pay  a  part  of  the 
amount  insured,  in  proportion  to 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


431 


^jQcia  que  exisla  entre  esos 
dos  valores,  comprendiendose  los 
gastos  del  reconocimiento  y  arbi- 
traje. 

Todo  este  independientemente 
de  la  estimacion  de  la  ganancia 
esperada,  si  esta  se  hubiese  ase- 
gurado. 

Art.  1326.  Los  efectos  averiados 
seran  siempre  vendidos  en  publico 
remate,  a  dinero  de  contado,  a  la 
mejor  postura;  pero  si  el  dueno 
6  consignatorio  no  quisiere  vender 
la  parte  de  efectos  sanos,  en 
ningun  caso  puede  ser  compelado. 
El  precio  para  el  calculo  sera  el 
corriente  que  los  mismos  efectos, 
si  fuesen  vendidos  al  tiempo  de  la 
entrega,  podrian  obtener  en  la 
plaza,  comprobado  por  Jos  precios 
corrientes  del  lugar,  6  en  su  de- 
fecto  certificado,  bajo  juramento, 
per  dos  comerciantes  de  efectos  del 
mismo  genero,  designados  por  el 
tribunal. 

Art.  1327.  Si  los  efectos  asegu- 
Tados  Uegasen  a  la  Republica 
averiados  6  disminuidos,  y  la 
aver  la  fuese  esleriormente  visible, 
el  examen  y  estimacion  del  dano 
debe  hacerse  por  peritos  arbitra- 
dores,  antes  que  los  efectos  se 
ventreguen  al  asegurado. 

Si  la  averia  no  es  esterior- 
mente  visible  al  tiempo  de  la 
descarga,  puede  hacerse  el  examen 
despues  de  la  entrega  de  los 
efectos  al  asegurado,  con  tal  que  se 
verifique  en  los  tres  dias  inme- 
diatos  siguientes  a  la  descarga,  y 
sin  perjuicio  de  las  demaspruebas 


the  difference  between  the  two 
values,  taking  into  consideration 
the  costs  of  the  examination  and 
arbitration. 

This  is  altogether  independent 
of  the  valuation  of  the  expected 
profits,  if  the  latter  have  been  in- 
sured. 

Art.  1326.  The  damaged  goods 
shall  always  be  sold  by  puLLc  auc- 
tion, for  cash,  to  the  highest 
bidder;  but  if  the  owner  or  con- 
signee does  not  wish  to  sell  the 
sound  part  of  the  goods,  he  can 
in  no  case  be  compelled  to  do  so. 
The  price  on  which  the  calcula- 
tion is  made  shall  be  the  ciu'rent 
price  which  the  same  goods  would 
have  realized,  if  they  had  been 
sold  at  the  time  of  their  delivery, 
as  proved  by  the  price  lists  of  the 
place,  or  in  default  thereof  by  a 
certificate  given  on  oath  by  two 
dealers  in  goods  of  the  same  kind 
nominated  by  the  Court. 

Art.  1327.  If  the  insured  goods 
arrive  in  the  Republic  damaged  or 
diminished,  and  the  damage  is 
visible  externally,  the  examina- 
tion and  assessment  of  the  damage 
must  be  made  by  two  expert  arbi- 
trators, before  the  goods  are  de- 
livered to  the  assured. 

If  the  damage  is  not  visible  ex- 
ternally at  the  time  of  the  dis- 
charge, the  examination  may  be 
made  after  delivery  of  the  goods 
to  the  assured,  provided  that  it 
takes  place  within  the  three  days 
immediately  following  the  dis- 
charge, without  prejudice  to  other 


432 


APPENDIX  C. 


que    puedan    producir 
esados. 


los    inter- 


Art.  1329.  Sucediendo  un  dano 
por  riesgo  de  mar  a  un  buque 
asegurado,  solo  paga  el  asegurador 
los  dos  tercios  de  los  gastos  de 
reparacion,  ya  sea  que  esta  si  veri- 
fique  6  no,  en  proporcion  de  la 
parte  asegurada  con  la  que  no  lo 
este.  El  otro  tercio  correra  por 
cuenta  del  asegurado,  en  razon  del 
mayor  valor  que  se  presume  al 
buque . 

Art.  13ol.  Si  se  justifica  que  las 
reparaciones  han  aumentado  el 
valor  del  buque  en  mas  de  un 
tercio,  el  asegurador  pagara  todos 
los  gastos,  conforme  a  las  disposi- 
ciones  del  articulo  1329,  deduci- 
endose  el  mayor  valor  que  haya 
adquirido  el  buque  con  la  repa- 
racion. 

Si  el  asegurado  prueba  por  el 
contrario,  que  las  reparaciones  no 
han  aumentado  el  valor  del  buque, 
por  que  era  nuevo,  y  que  el  dano 
le  ba  sobrevenido  en  el  primer 
viaje,  6  por  que  las  velas  6 
aparejos,  &c.  eran  nuevos,  no  se 
deducira  el  tercio,  y  el  asegurador 
pagara  todos  los  gastos  de  repa- 
racion en  la  proporcion  espresada 
en  el  articulo  1329. 


Cap.  2. 

Del  proratea  y  de  la  contribucion 
en  la  averia  comun. 

Art.  1335.  El  arreglo  y  proratea 
de  la  averia  comun  debera  hacerse 
en  el  puerto  de  la  entrega  de  la 


proof    that    the  parties  interest-ed 
can  give. 

Art.  1329.  If  an  insured  vessel 
suffers  damage  by  a  sea  peril,  the 
insurers  pay  two-thirds  of  the  cost 
of  the  repairs,  -whether  they  are 
effected  or  not,  in  the  proportion 
of  the  insTired  to  the  uninsured 
part.  The  other  third  shall  be 
borne  by  the  assured  on  account 
of  the  increase  in  the  value  of  the 
ship  which  the  repairs  are  pre- 
sumed to  have  caused. 

Art.  1331.  If  it  be  proved  that 
the  repairs  have  increased  the 
value  of  the  ship  by  more  than  a 
third,  the  insiu-er  shall  pay  all  the 
expenses  in  accordance  with  Art. 
1329,  after  deducting  the  increased 
value  which  the  vessel  has  gained 
by  the  repairs. 

If,  on  the  other  hand,  the  as- 
sured proves  that  the  repairs  have 
not  increased  the  value  of  the 
vessel,  because  it  was  new  and  the 
damage  was  sustained  on  her  first 
voyage,  or  because  the  sails,  ap- 
parel, &c.  were  new,  the  third  is 
not  deducted,  and  the  insurer  shall 
pay  all  the  costs  of  the  repairs,  in 
the  projDortion  mentioned  in  Art. 
1329. 


Cap.  2. 

Of  apportionment  and  contribu- 
tion in  general  average. 

Art.  1335.  The  adjustment  and 
apportionment  of  general  average 
must  be  made  at  the  port  where 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


483 


carga  6  donde  acaba  el  viaje,  no 
mediando  estipulacion  contraria. 

Si  el  viaje  se  revoca  en  la  Re- 
piiblica,  si  despues  de  la  salida,  se 
viese  el  buqiie  oblig-ado  a  volver 
al  puerto  de  la  caro-a,  6  si  encallare 
6  naufragare  deutro  de  la  Re- 
piiblica,  la  liquidacion  de  las 
averias  se  verificara  en  el  puerto 
de  donde  el  buque  salio,  6  debio 
salir. 

Si  el  viaje  se  revocare,  estando 
el  buque  fuera  de  la  Republica,  6 
se  vendiere  la  carga  en  un  puerto 
de  arribada  forzosa,  la  averia  se 
liquidara  y  prorateara  en  el  lugar 
de  la  revocacion  del  viaje,  6  de  la 
venta  del  cargamento. 

Ar;.  1G3G.  El  reconocimiento  y 
liquidacion  de  la  averia  y  su  im- 
porte,  se  verificara  per  peritos 
arbitradores  que  a  propuesta  de  los 
interesados  6  sus  representantes,  6 
bien  de  oficio  si  estos  no  lo  hiciereu 
nombrara  el  Tribunal  de  Comercio. 

Si  ce  liiciere  en  pais  estranjero. 
competera  el  nombramiento  al 
Consul  de  la  Repiiblica,  y  en  su 
defecto,  a  la  autoridad  que  conozca 
de  los  negoeios  mercantiles. 

Art.  1337.  Si  el  capitan  no  veri- 
ficase  las  diligencias  ordenadas  en 
el  articulo  precedente,  pueden 
hacerlo  los  duenos  del  buque  6  del 
cargamento  6  cualquier  otra  per- 
sona interesada,  sin  perjuicio  de 
la  responsabilidad  en  que,  por  su 
omisiou,  incurre  el  capitan. 


the  cargo  is  delivered,  or  wherever 
the  voyage  ends,  if  there  is  no 
stipulation  to  the  contrary. 

If  the  voyage  is  interrupted  in 
the  Republic,  if  after  she  has 
started,  the  ship  is  forced  to  put 
back  to  the  port  of  embarcation,  or 
if  she  gets  aground  or  is  wrecked 
within  the  Republic,  the  average 
statement  must  be  drawn  up  in  the 
port  whence  the  ship  sailed,  or 
would  have  sailed. 

If  the  voyage  is  interrupted 
when  the  ship  is  out  of  the  Re- 
public, or  if  the  cargo  is  sold  in 
a  port  of  refuge,  the  average  must 
be  adjusted  and  apportioned  in  the 
place  where  the  voyage  was  inter- 
rupted or  the  cargo  sold. 

Art.  1336.  The  verification  and 
adjustment  of  the  average  and  its 
amount  should  be  made  by  two 
arbitrators,  experts,  whom  at  the 
request  of  the  parties  interested,  or 
their  agents,  or  failing  these,  ex 
officio,  the  Tribunal  of  Commerce 
shall  appoint. 

In  a  foreign  country,  the  Consul 
of  the  Republic  is  competent  to 
make  the  appointment,  or  failing 
him,  the  authority  that  takes  cog- 
nizance of  mercantile  affairs. 

Art.  1337.  Should  the  captain 
not  take  the  steps  ordered  in  the 
preceding  article,  the  owners  of 
the  ship  or  cargo,  or  any  other 
party  interested,  may  act  without 
prejudice  to  the  responsibility  in- 
cui-red  bj^  the  captain  by  his  omis- 
sion. 

F  F 


434 


APPENDIX  C. 


Art.  1338.  Las  averias  comunes 
seran  prorateadas: 

Sobre  el  valor  del  buque  en  el 
estado  que  se  encuentoe  a  su 
Uegada,  comprendiendose  lo  que  se 
da  por  indemnizacion  de  la  averia 
comvm; 

Sobre  el  importe  del  flete,  dedu- 
ciendose  los  sueldos  y  manutenciou 
de  los  individuos  de  la  tripulacion; 

Sobre  el  valor  de  los  efectos 
que  se  hallaban  al  tiempo  del 
suceso  a  bordo  del  buque  6  de  las 
lanehas  6  embarcaciones  menores, 
6  que  antes  de  sucedido  el  dano 
fueron  alijados  por  necesidad  y 
reembolsados,  6  que  ban  tenido 
que  venderse  para  pagar  los  gastos 
de  averia. 

La  moneda  metalica  contribuye 
a  la  averia  comun,  segun  el  cambio 
del  lugar  donde  acaba  el  viaje. 

Art.  1339.  Los  efectos  de  la 
carga  entran  por  su  valor  en  el 
lugar  de  la  descarga,  deducido  el 
flete,  dereehos  de  importacion  y 
otros  gastos  de  la  descarga,  asi 
como  la  averia  particular  que 
liubiesen  sufrido  durante  el  viaje. 
Exceptuanse  los  casos  siguientes: 

Si  el  prorateo  tiene  que  hacerse 
en  el  puerto  de  donde  el  buque 
salio  6  debia  salir,  el  valor  de  los 
objetos  cargados  se  determinara 
segiui  el  precio  de  compra,  con  los 
gastos  hasta  a  bordo  sin  que  se 
comprenda  el  premio  de  seguro; 


Art.  1338.  General  average  is  to 
be  apportioned: 

On  the  value  of  the  ship  in  the 
state  that  she  is  in  on  her  arrival, 
including  what  she  receives  as 
compensation  in  general  average. 

On  the  amount  of  the  freight, 
deducting  wages  and  maintenance 
of  crew. 

On  the  value  of  the  goods  on 
board  at  the  time  of  the  accident, 
or  in  the  lighters  or  small  boats 
(Art.  1320  et  seq.),  or  which,  be- 
fore the  accident  occurred,  were 
lightened  of  necessity  and  were 
contributed  for,  or  which  had  been 
sold  to  pay  the  expenses  of  the 
average  (a) . 

Coined    money    contributes     to 


o-eneral 


average 


at    the    rate    of 


exchange  of   the   place  Avhere   the 
voyage  ends. 

Art.  1339.  The  goods  forming 
the  cargo  shall  be  estimated  at 
their  value  at  the  place  of  dis- 
charge, minus  the  freight,  import 
dues,  and  other  costs  of  discharge, 
and  also  what  particular  average 
they  may  have  suffered  in  the 
course  of  the  voyage.  The  fol- 
lowing cases  excepted: — 

If  the  apportionment  has  to  be 
dravoi  up  at  the  port  whence  the 
ship  sailed,  or  was  intending  to 
sail  (Art.  1335),  the  value  of  the 
goods  shipped  must  be  taken  at 
the  cost  price,  with  the  expenses 
up  to  the  time  they  were  put  on 
board,  not  including  the  premium 
of  insurance. 


(a)  As  to  the  freight  of  such  goods,  see  Art.  1086,  infra. 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


485 


Si  esos  objetos  estuviesen 
averiados,  segun  su  valor  real; 

Si  el  viaje  se  revocare,  6  los 
efectos  se  vendiesen  fuera  de  la 
Republica,  y  no  se  liquidase  alii  la 
averia  conforme  a  lo  dispuesto  en 
el  articulo  1335,  se  tomara  como 
capital  contxibuyente  el  valor  de 
esos  efectos  en  el  lugar  de  la  revo- 
cacion  del  viaje,  6  el  producto 
liquido  obtenido  en  el  lugar  de  la 
venta. 

Art.  1340.  Los  efectos  alijados 
seran  tasados  segun  el  precio  cor- 
riente  del  lug-ar  de  la  descarga  del 
buque,  deducido  el  flete,  derechos 
de  importacion  y  gastos  ordinaries. 
Su  naturaleza  y  calidad  se  justifi- 
<!aran  por  los  conocimientos,  fac- 
turas  y  otros  medios  legitimos  de 
prueba. 

Art.  1341.  Si  la  naturaleza  6  la 
calidad  de  los  efectos  es  superior  a 
la  designada  en  los  conocimientos, 
contribuyen  bajo  el  pie  de  su  valor 
real  en  caso  de  salvarse. 

Son  pagados  segiin  el  valor 
senalado  en  la  poliza  de  seguro,  y 
en  su  defecto,  con  arreglo  a  la 
calidad  designada  en  el  conoci- 
miento,  si  se  han  perdido  por 
echazon. 

Si  los  efectos  declarados  son  de 
naturaleza  6  calidad  inferior  a  la 
indicada  en  el  conocimiento,  con- 
tribuyen en  caso  de  salvarse, 
segun  la  calidad  indicate  por  el 
conocimiento. 


If  the  goods  have  been  dam- 
aged, according  to  their  actual 
value . 

If  the  voyage  be  interrupted 
and  the  goods  sold  out  of  the  Re- 
public, and  the  average  not  settled 
there,  agreeably  to  the  rule  of  Art. 
1335,  the  contributory  value  of  the 
goods  is  their  value  at  the  place 
where  the  voyage  was  interrupted, 
or  the  net  proceeds  obtained  at  the 
place  of  the  sale  thereof. 

Art.  1340.  Goods  thrown  over- 
board shall  be  valued  at  the  prices 
current  at  the  place  of  the  dis- 
charge of  the  ship,  minus  freight, 
import  dues,  and  customary  ex- 
penses (b) .  Their  kind  and  quality 
to  be  proved  by  the  bills  of  lading, 
invoices,  and  other 
means . 


legitimate 


Art.  1341.  If  the  kind  and 
quality  of  the  goods  be  superior 
to  that  designated  in  the  bills  of 
lading,  they  should  contribute  on 
the  basis  of  their  actual  value, 
supposing  they  are  saved. 

If  lost  in  the  jettison,  they  are 
to  be  paid  for  according  to  the 
value  inserted  in  the  policy  of  in- 
surance, or  failing  such,  accord- 
ing to  their  quality  as  per  bill  of 
lading. 

If  the  goods  mentioned  are  in- 
ferior in  kind  and  quality  to  their 
description  in  the  bill  of  lading, 
they  shall  contribute  in  case  of 
salvage  according  to  the  quality 
stated  in  the  bill  of  lading. 


(b)  As  to  the  freight  of  jettisoned  goods,  see  Art.  1086,  infra. 

F  F  2 


436 


APPENDIX  C. 


Mediando  echazou,  son  pagados 
en  la  forma  antes  senalada. 

Art.  1342.  Las  miuiiciones  de 
guerra  y  de  boca  del  buque,  el 
equipaje  del  capitan,  individuos  de 
la  tripulacion  y  pasajeros,  no  con- 
tribuyen  en  caso  de  echazon  u  otra 
averia  comun. 

Sin  embargo,  el  valor  de  los 
efectos  de  esa  clase  que  se  hiibiesen 
alijado,  sera  pagado  a  prorata  por 
todos  los  demas  objetos. 


Art.  1343.  Los  efectos  de  que  no 
hubiere  conocimientos  firmados  por 
el  capitan  6  que  no  se  hallen  en  la 
lista  6  manifiesto  de  la  carga,  no  se 
pagan  si  son  alijados;  pero  con- 
tribuyen  al  pago  de  la  averia 
comun  si  se  salvaren. 


Art.  1344.  Los  objetos  cargados 
sobre  cubierta  contribuyen  al  pago 
de  la  averia  comun  en  caso  de 
salvarse.  Si  fuesen  alijados  6  se 
averiasen  con  motive  de  la  echazon^j 
no  tiene  derecho  el  dueiio,  fuera 
del  caso  del  segundo  paraffo  del 
articulo  911,  a  exigir  su  pago,  sin 
perjuicio  de  la  accion  que  le  cor- 
responde  contra  el  capitan  en  el 
caso  del  articulo  910. 

Art.  1345 .  Si  el  buque  se  pierde, 
no  obstante  la  echazon,  6  cualquier 
otro  dauo  hecho  voluntariamente 
para  salvarle,  cesa  la  obligacion  de 
contribuir  al  importe  de  la  averia 


In  ease  of  jettison,  they  are  paid 
for  in  the  manner  stated  above. 

Art.  1342.  Ammunition  of  war, 
provisions,  and  personal  effects  of 
captain,  crew,  and  passengers,  do 
not  contribute  in  case  of  jettison 
or  other  general  average. 

Nevertheless,  the  value  of  goods 
of  this  kind,  if  they  have  been 
jettisoned,  shall  be  paid  for  in 
proportion  by  all  the  rest  (Art. 
1338). 

Art.  1343.  Any  goods  for  which 
there  are  no  bills  of  lading  signed 
by  the  captain,  or  which  are  not 
found  in  the  list  or  manifest  of 
the  cargo,  are  not  paid  for  if  they 
are  jettisoned;  but  if  saved  they 
contribute  to  the  payment  of  gene- 
ral average. 

Art.  1344.  Deck  cargo  contri- 
butes to  the  payment  of  general 
average  in  case  it  is  saved.  If 
jettisoned  or  damaged  with  a  view 
to  jettison  the  owner  has  no  right 
(except  in  case  of  the  second  para- 
graph of  Art.  911  (c)),  to  claim 
payment  for  them,  Avithout  preju- 
dice to  any  corresponding  action 
against  the  captain  in  case  of  Art. 
910. 

Art.  1345.  Should  the  ship  be 
lost,  notwithstanding  the  jettison, 
or  any.  other  damage  voluntarily 
incurred  to  save  her,  the  obligation 
to   contribute   to  general  average 


I 


(c)  Excepting  in  the  small  coasting  trade,  or  river  navigation,  and  wliere  the  custom 
is  to  carry  deck  loads.     (Art.  911.) 


THE  LAW  OF  THE  ARGENTINE  KEPUBLIC. 


4:37 


coiuun.  Los  objetos  que  quedaren 
en  buen  estado  6  se  salvaren,  no 
responden  a  pago  algnino  por  los 
alijados,  averiados  6  cortados. 

Art.  1346.  Si  por  la  ecliazon  de 
efectos  u  otro  dano  cualquiera 
liecho  deliberadamente  para  im- 
pedir  el  desastre,  se  salva  el  biiqne, 
y  coutinuando  el  viaje  se  pierde, 
los  efectos  'salvados  del  seg'undo 
peligro,  contribuyen  solo  por  si  a 
la  echazon  verificada  eon  motive 
■del  primero,  bajo  el  pie  del  valor 
que  tienen  en  el  estado  en  que  se 
liallan,  deducidos  los  gastos  de 
salvamento . 

Art.  1347.  Salvaudose  el  buque 
•6  la  carga,  niediante  un  acto  deli- 
berado  de  que  resulto  averia 
co>mun,  no  puede  quien  sufrio  el 
perjuicio  causado  por  ese  acto, 
exigir  indemnizacion  alguna,  por 
contribucion  de  los  objetos  sal- 
vados, si  estos,  por  algun  accidente 
no  lleg-asen  a  poder  del  dueno  6 
•consignatario,  6  llegando  no  tuvi- 
esen  valor  alguno,  salvos  los  casos 
de  los  articulos  949  y  1316  nu- 
meros  12,  13  y  21. 

Sin  embargo,  si  la  perdida  de 
esos  efectos  procediese  de  culpa  del 
dueno  6  consignatario,  quederan 
obligados  a  la  contribucion. 


ceases.  Any  effects  remaining  in 
good  condition,  or  saved,  do  not 
pay  at  all  for  what  has  been 
thrown  over,  damaged,  or  cut 
away. 

Art.  1346.  If  by  the  jettison  or 
any  other  damage  Avhatever  volun- 
tarily incurred  to  avert  the  dis- 
aster, the  ship  is  saved  and,  con- 
tinuing the  voyage,  is  lost,  any 
effects  saved  from  the  second 
danger  contributo  only  per  se  to 
the  jettison  effected  with  a  view 
to  the  first  danger,  on  the  basis 
of  their  value  in  their  actual  con- 
dition, deducting  costs  of  salvage. 

Art.  1347.  If  ship  or  cargo  be 
saved  by  a  deliberate  act  resulting 
in  general  average,  an}^  one  who 
has  suffered  loss  from  this  act, 
cannot  claim  indemnification  by 
contribution  from  the  goods  saved, 
if  by  some  accident  these  never 
reach  their  owners  or  consignees, 
or  reaching  them,  are  found 
worthless,  except  in  the  cases 
specified  in  Arts.  949  (d),  and 
1316,  Nos.  12,  13,  and  21. 

Nevertheless,  if  the  loss  of  these 
g'oods  was  due  to  the  fault  of  the 
owners  or  consignees,  their  obli- 
gation to  contribute  remains. 


Art.     1348.     El    dueno    de    los  1       Art.    1348.    The    owner   of   the 

efectos  no  puede  en  caso  alguno  j  goods     cannot     in    any    ease     be 

ser    obligado    a    contribuir    a    la  1  obliged   to   contribute    to   general 

averia  comun  con  mas  cantidad  de  |  average  a  higher  sum  than  what 


{d)  This  article  refers  to  loans  on  bottomry. 


438 


APPENDIX  C. 


la  que  valgan  los  efectos  al  tiempo 
de  su  llegada,  a  no  ser  respecto  de 
los  gastos  que  el  capitan,  despues 
del  naufragio,  apresamiento  6  de- 
tencion  del  buque,  haya  hecho  de 
buena  fe,  y  aun  sin  ordenes  e  in- 
strucciones,  para  salvar  los  efectos 
naufragados,  6  reclamar  los 
apresados,  aun  en  el  caso  de  que 
sus  diligencias  6  reclamaciones 
fuesen  infructuosas. 

Art.  1349.  Si  despues  de  veri- 
ficado  el  prorateo,  recobran  los 
duenos  6  consignatarios  los  efectos 
alijados,  estan  obligados  a  de- 
volver  al  capitan  e  interesados  en 
la  carga  la  parte  que  recibieron 
en  contemplacion  de  tales  objetos, 
dedxiciendo  los  danos  causados  por 
la  eehazon  y  los  gastos  del  recobro. 


En  tal  caso,  la  suma  devuelta 
sera  repartida  entre  el  buque  y 
los  interesados  en  la  carga,  en  la 
misma  proporcion  en  que  contri- 
buyeron  para  el  resarcimiento  del 
dano  causado  por  la  eehazon. 


Art.  1350.  Si  el  dueno  de  los 
objetos  alijados  los  recobra  sin 
reclamar  indemnizacion  alguna,  6 
sin  haber  figiu'ado  en  la  liquida- 
cion  de  la  averia,  esos  objetos  no 
contribuyen  a  las  averias  que 
sobrevengan  al  resto  de  la  carga, 
despues  de  la  ecliazon. 


the  goods  are  worth  at  the  time 
of  their  arrival,  except  for  the 
expenses  which  the  captain  after 
shipwreck,  capture,  or  detention  of 
his  vessel  may  have  incurred  in 
good  faith,  even  if  without  orders 
and  instructions,  to  save  the 
wrecked  goods  or  reclaim  the  cap- 
tured ones,  however  much  his  ef- 
forts may  have  been  in  vain. 

Art.  1349.  If  after  the  appor- 
tionment has  been  made,  the 
owners  or  consignees  of  the  effects 
jettisoned  should  recover  them, 
they  are  bound  to  return  to  the 
captain,  and  the  parties  interested 
in  the  cargo,  the  amount  which 
they  had  received  on  account  of 
such  goods,  deducting  expenses 
incurred  for  the  recovery,  and 
damages  caused  by  the  jettison. 

In  such  a  case,  the  sum  returned 
shall  be  divided  between  the  ship, 
and  those  interested  in  the  cargo, 
in  the  same  proportion  as  that  in 
which  they  contributed  to  compea- 
sation  for  the  damage  caused  by 
the  jettison. 

Art.  1350.  If  the  owner  of  the 
goods  jettisoned  should  recover 
them  without  having  claimed  any 
indemnification,  or  without  having 
appeared  in  the  average  adjust- 
ment, these  goods  do  not  contri- 
bute to  damage  sustained  by  the 
rest  of  the  cargo  after  the  jetti- 
son. 


THE  LAW  OF  THE  ARGENTINE  KEPU15LIC. 


439 


FROM  TIT.  XII. 
De  las  Arribadas  Forzosas. 

Art.  1274.  Cuando  un  buque 
entra  por  necesidad  en  algun 
puerto  6  lugar  distinto  de  los  de- 
terminados  en  el  viaje  estipulado, 
se  dice  que  hace  arribada  forzosa. 

Son  justas  causa?  de  arribada: 


1°.  La  falta  de  viveres  6  de 
aguada ; 

2°.  Cualquiera  accideute  en  la 
tripulacion,  carga  6  buque  que 
inhabilite  a  este  para  continuar  la 
navegacion; 

3°.  EI  temor  fundado  de  ene- 
migos  6  piratas. 

Art.  1275.  Aun  en  los  cases  pre- 
vistos  en  el  articulo  precedente,  no 
se  tendra  por  legitima  la  arribada : 

1°.  Si  la  falta  de  viveres  6  de 
aguada  proviniese  de  no  haberse 
hecho  el  aprovisionamiento  nece- 
sario  para  el  viaje,  segun  uso  y 
costumbre  de  los  navegantes,  6  de 
haberse  perdido  6  corrompido  por 
mala  colocacion  6  descuido,  6  por- 
que  el  capitan  hubiese  vendido 
alguna  parte  do  los  viveres  6 
aguada ; 

2°.    Si    la    innavegabilidad    del 


FROM  TIT.  XII. 

Of  Putting  ikto  a  Port  of 
Eefuge. 

Art.  1274.  When  a  ship  is  forced 
to  put  into  any  port  or  place  other 
than  those  agreed  on  for  her  voy- 
age, it  is  said  that  she  has  put 
into  a  port  of  refuge  (Art.   1092). 

The  following  are  lawful  causes 
for  putting  in: 

1.  Want  of  victuals  or  water. 


2.  Any  accident  to  crew,  cargo, 
or  ship,  which  may  unfit  her  for 
continuing  her  voyage. 


3.  Reasonable  fear  of  enemies 
or  pirates. 

Art.  1275.  Even  under  the  above 
circumstances,  putting  in  will  not 
be  held  justifiable: 

1.  If  the  want  of  victuals  or 
water  was  caused  by  there  not 
having  been  a  proper  supply  for 
the  voyage  according  to  maritime 
use  and  custom;  or  because  they 
had  got  lost  or  spoiled  by  bad 
stowage  or  carelessness,  or  because 
the  captain  had  sold  part  of  the 
victuals  or  water. 


2.  If  the  innavigability  of  the 
buque  procediese  de  no  haberlo  ship  proceeded  from  her  not  hav- 
reparado,  pertrechado  6  dispuesto  j  ing  been  repaired,  provided  or 
competentemente  para  el  viaje,  6  I  stored  completely  for  the  voyage, 
del  mal  arrumaje  de  la  carga;  or  from  bad  stowage  of  the  cargo. 


440 


APPENDIX  C. 


3°.  Si  el  temor  de  eiiemigos  6 
piratas  no  hubiese  sido  fundado  en 
hechos     positivos    que    no    dejen 


lug-ar  a  la  duda. 


Art.  1277.  Los  gastos  de  la  ar- 
ribada  forzosa  seran  de  cuenta  del 
fletante,  6  del  fletador,  6  de  ambos, 
segun  sean  las  eausas  que  los  ban 
motivado,  salvo  su  derecho  a 
repetirlos  contra  quien  bid^iere 
lugar. 


Art.  1279.  Solo  se  procedera  a 
la  descarga  en  el  puerto  de  arri- 
bada,  cuando  sea  de  indispensable 
necesidad  hacerlo,  para  practicar 
las  reparaciones  que  el  buque 
necesite,  6  para  evitar  daiio  6 
averia  en  ol  carganiento. 

En  ambos  casos  debe  preceder 
a  la  descarga  la  autorizacion  del 
Tribunal  (')  de  la  autoridad  que 
conozca  de  los  negocios  niercan- 
tiles.  En  puerto  estranjero  donde 
haya  Consul  del  Eepiiblica,  sera  de 
su  cayo  dar  esa  autorizacion. 


From  TIT.  III. 
De  los  Capitanes. 

Art.  933.  El  capitan  esta  obli- 
gado  a  pedir  el  dictamen  de  los 
dueiios  del  buque,  car  gad  ores  6  sus 
mandatorios,  estando  presentes,  y 
en  todos  los  casos  a  consultar  a 
los  oficiales  del  buque,  siempre  que 
se  trate  de  algun  aeontecimiento 
importante . 

Ninguna  disculpa  podra  ex- 
onerar  de  responsabilidad  al  capi- 


3.  If  the  fear  of  enemies  or 
pirates  was  not  founded  on  posi- 
tive facts  leaving  no  room  for 
doubt. 

Art.  1277.  The  expenses  of  put- 
ting into  a  port  of  refuge  are  for 
the  account  of  the  owner  or  the 
freighter  of  the  ship,  or  both,  ac- 
cording to  the  causes  which  have 
led  to  it,  the  right  being  reserved 
to  claim  them  from  whomsoever 
they  legally  may. 

Art.  1279.  Discharge  in  a  port 
of  refuge  is  only  allowable  when  it 
is  absolutely  necessary,  either  for 
the  repairs  required  by  the  ship,  or 
to  save  the  cargo  from  loss  or 
damage. 

In  either  case,  the  discharge 
should  be  preceded  by  the  autho- 
rization of  the  Court  or  of  the 
authority  having  cognizance  of 
maritime  affairs.  In  a  foreign 
port  where  there  is  a  Consul  of 
the  Republic,  the  authorization 
should  be  given  by  him. 

From  TIT.  III. 

Of  Captains. 

Art.  933.  The  captain  is  bound 
to  take  the  opinion  of  the  owners 
of  the  ship,  of  the  shippers  or  of 
their  representatives,  Avhen  they 
are  present,  and  in  all  cases  to 
consult  the  officers  of  the  ship 
whenever  an  important  matter 
arises. 

No  excuse  can  exonerate  the 
captain  from  responsibility  for  de- 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


441 


tan  que  mudase  la  derrota  que 
estaba  obligado  a  seguir,  6  que 
practiease  algun  otro  acto  estra- 
ordinario,  de  que  pueda  provenir 
dano  a  las  personas  6  al  buque  6 
carga,  sin  haber  precedido  delibe- 
racion  tomada  en  junta,  eompu- 
esta  de  todos  los  oficiales  del 
buque,  y  en  presencia  de  los  inte- 
lesados  en  el  buque  6  en  la  carga, 
si  algunos  se  encontrasen  abordo. 
En  tales  deliberaciones,  y  en 
todas  las  demas  resoluciones  que 
fuese  oblig^ado  a  tomar  con  acuerdo 
de  los  oficiales  del  buque,  el  capi- 
tan  podra,  siempre  que  lo  juzgare 
conveniente,  obrar  bajo  su  respon- 
sabilidad  personal,  contra  el  dic- 
tamen  de  la  mayoria. 

Art.  938.  En  caso  de  echazon, 
el  capitan  estara  obligado  a  echar 
primero,  siendo  posible,  la  cosas 
nienos  neeesarias,  las  mas  pesadas 
y  las  de  menor  precio;  en  seguida 
las  mercaderias  del  prlmar  puente, 
a  su  eleccion,  despues  de  haber 
oido  el  dicramen  de  los  oficiales  del 
buque . 

El  capitan  debe  asentar  por 
escrito,  tan  luego  conio  le  sea 
posible,  las  resoluciones  tomadas  a 
tal  respecto.  El  asiento  con- 
tendrii : 

1°.  Las  causas  que  hayan  deter- 
minado  la  echazon; 

2°.  La  enunciacion  de  los  ob- 
jetos  cchados  6  averiados; 

3°.  Las  firmas  de  los  que  hayan 
sido  consultados,  6  la  ospresion  de 


parting  from  the  route  which  he 
■vvas  obliged  to  foUoAv,  or  for 
taking  any  other  extraordinary 
measure  from  which  damage  may 
ensue  to  persons,  or  to  the  ship 
or  cargo,  without  previous  delibe- 
ration at  a  council  composed  of  all 
the  officers  of  the  ship,  and  in  the 
presence  of  the  persons  interested 
in  the  ship  or  cargo,  if  any  of  them 
are  on  board. 

In  these  deliberations,  and  in  all 
other  resolutions  as  to  Avhich  he 
is  bound  to  take  the  advice  of  the 
ship's  officers,  the  captain  may, 
whenever  he  thinks  proper,  act  on 
his  own  responsibility  against  the 
advice  of  the  majority. 


Art.  938.  In  case  of  jettison  the 
captain  is  bound  to  jettison  first,  if 
possible,  the  articles  which  are 
least  necessary,  the  heaviest  and 
those  having  the  least  value;  next 
the  goods  on  the  upper  deck  ac- 
cording to  his  choice,  after  having 
taken  the  advice  of  the  ship's 
officers. 

The  captain  must  put  into 
writing,  as  soon  as  possible,  the 
resolutions  taken  in  this  respect. 
The  record  must  contain:  — 


1.   The  reasons  for  the  jettison. 


2.  A   list  of    the  articles    jetti- 
soned or  damaged. 

3.  The  signatures  of  the  persons 
who    have    been    consulted,  or    a 


442 


APPENDIX  0. 


los  motives  que  hayaii  tenido  para 
no  firmar. 

Art.  947.  Cuando  durante  el 
viaje  el  capitan  se  halle  sin  f ondos 
pertenecientes  al  buque,  6  sus  pro- 
prietaries, no  hallandose  presentes 
alguno  de  estos,  sus  mandatarios  6 
consiffnatarios,  v  en  su  defecto, 
alg-un  interesado  en  la  carga,  6  si 
aunque  se  hallasen  presentes,  no 
le  facilitasen  los  f ondos  necesarios, 
podra  contraer  deudas,  tomar 
dinero  a  la  gruesa  sobre  el  casco, 
quilla  y  aparejos,  y  hasta  enfalta 
absoluta  de  otro  recurso,  vender 
mereaderias  de  la  carg-a,  decla- 
rando  en  los  documentos  de  las 
obligaciones  que  firmare,  la  causa 
de   que  proceden. 

Las  mereaderias  que  en  tales 
cases  se  vendieren  seran  pagadas 
a  los  cargadores  per  el  precio  que 
las  otras  de  igual  calidad  obtu- 
vieren  en  el  puerto  de  la  descarga, 
en  la  epeca  de  la  llegada  del 
buque,  6  per  el  que  seiialaren 
peritos  arbitradores,  en  el  caso  que 
la  venta  liubiere  comprendido 
todas  las  mereaderias  de  la  misma 
calidad . 

Si  el  precio  corriente  fuere  in- 
ferior al  de  venta,  el  beneficio  per- 
tenecera  al  dueno  de  las  mereade- 
rias. Si  el  buque  no  pudiere  llegar 
al  puerto  de  su  destine,  la  cuenta 
se  dara  per  el  precio  de  venta. 

Art.  948.  Para  que  pueda  tener 
lus'ar  alguna  de  las  medidas  auto- 
rizadas  en  el  artifculo  preoedente, 
es  indispensable: 


statement  of  their  reasons  for  re- 
fusing to  sign. 

Art.  947.  If,  in  the  course  of 
the  voyage,  the  captain  finds  him- 
self without  any  money  belonging- 
to  ship  or  her  owners,  and  none  of 
them  or  of  their  agents  or  con- 
signees are  on  the  spot,  or  failing 
these,  none  of  those  interested  in 
the  cargo,  or  being  on  the  spot 
they  do  not  advance  the  necessary 
funds,  he  has  power  to  contract 
debts,  to  hypothecate  hull,  keel, 
and  tackle,  and,  every  other  re- 
source absolutely  failing,  he  may 
even  sell  goods  belonging  to  the 
cargo,  stating,  in  the  documents  of 
the  bonds  which  he  signs,  the 
causes  which  have  led  to  them. 
(Art.  950.) 

The  goods  sold  in  such  a  case 
shall  be  paid  for  to  the  shippers 
at  the  same  price  that  others  of 
the  same  quality  are  fetching  at 
the  port  of  discharge  at  the  time 
of  the  ship's  arrival;  or  at  a 
valuation  made  by  experts,  sup- 
posing that  the  sale  had  comprised 
all  the  goods  of  that  quality. 


If  the  price  current  is  less  than 
the  sale  has  fetched,  the  profit 
shall  belong  to  the  owner  of  the 
goods.  If  the  ship  cannot  reach 
the  port  of  destination,  the  ac- 
count is  made  up  at  the  price  of 
the  sale. 

Art.  948.  The  following  condi- 
tions are  requisite,  to  justify  any 
of  the  measvires  in  the  preceding 
article :  — 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


443 


1°.  Que  el  capitan  pruebe  falta 
absoluta  de  fondos  en  su  poder, 
pertenecientes  al  buque  6  sus 
duenos ; 

2°.  Que  no  se  halle  piesente  el 
due  no  del  buque,  sus  mandatarios 
6  consignatarios,  y  en  su  defecto, 
alguno  de  los  interesados  en  la 
carga,  6  que  hallandose  presentes, 
hayan  sido  requeridos  sin  re- 
sultado ; 

3°.  Que  la  resolucion  haya  sido 
tomada  de  acuerdo  con  los  oficiales 
del  buque,  haeiendose  en  el  diario 
de  navegacion  el  asiento  respec- 
tivo . 

La  justificacion  de  estos  requi- 
sitos  sera  becha  ante  el  Tribunal 
de  Comercio  del  puerto  donde  se 
tomare  el  dinero  a  la  gruesa,  6  se 
vendieren  las  mercaderias,  y  en 
pais  estranjero  ante  los  Consules 
de  la  Republica  6  la  autoridad 
local,  en  su  defecto. 

Art.  949.  Las  letras  procedentes 
de  dinero  recibido  por  el  capitan 
para  gastos  indispensables  del 
buque  6  de  la  carga,  en  los  casos 
previstos  en  los  articulos  anteri- 
ores,  y  los  premios  del  seguro 
respectivo,  cuando  su  importe 
hubiera  sido  realmente  asegurado, 
tienen  el  privilegio  de  letras  de 
cambio  raaritimo,  si  contienen  de- 
elaracion  espresa  de  que  su  im- 
porte fue  destinado  para  los  re- 
feridos  gastos,  y  son  exigibles, 
aunque  tales  objetos  se  pierdan 
por  algun  suceso  posterior,  pro- 
bando  el  dador  que  el  dinero  fue 


1.  That  the  captain  shall  prove 
an  absolute  want  of  any  funds  at 
his  command,  belonging  to  the 
ship  or  her  owners. 

2.  That  neither  Ihe  shipowner, 
his  agents,  nor  consignees  were  at 
hand,  nor  failing  them,  any  one 
interested  in  the  cargo;  or  that, 
being  on  the  spot,  they  were  soli- 
cited for  money  in  vain. 


3 .  That  the  resolution  shall  have 
been  come  to  in  agreement  with 
the  ship's  officers,  their  respective 
consent  being  entered  in  the  log 
book. 

The  legalization  of  these  requi- 
site conditions  is  to  be  made  be- 
fore the  Tribunal  of  Commerce  in 
the  port  where  the  bottomry  bond 
is  obtained  or  the  goods  sold,  and 
in  foreign  countries  before  the 
Consuls  of  the  State,  or  failing 
such,  the  local  authorities. 

Art.  949.  The  bills  of  exchange 
for  money  received  by  the  captain 
for  the  necessary  expenses  of  the 
ship  or  cargo,  in  the  cases  speci- 
fied in  the  preceding  articles,  and 
the  respective  premiums  of  insur- 
ance, if  their  amount  has  really 
been  insured,  have  the  privileges 
of  maritime  bills  of  exchange,  if 
they  contain  an  express  declara- 
tion that  their  amount  was  in- 
tended to  be  used  for  the  said 
expenses;  and  they  are  payable 
even  if  the  property  is  lost  by 
reason  of  a  later  occurrence,  pro- 
vided that  the  lender  proves  that 


444 


APPENDIX  C. 


efectivamente  empleado  eii  boue- 
ficio  del  buque  6  de  la  carg-a. 

Art.  950.  Las  obligaciones  que 
contrae  el  capitau  para  atender  a 
la  reparacion,  habilitaciou  y  apro- 
visioiiaiuiento  del  buque.  uo  le 
eonstituyen  personalniente  respou- 
sable,  sino  que  recaen  sob  re  el 
aj'mador,  a  no  ser  que  el  capitan 
comprometa  espresamente  su  re- 
sponsabilidad  personal  6  suseriba 
letras  de  cambio  6  pagares  a  su 
nombre . 

Sin  embargo,  ei  eapitan  que  en 
los  documentos  de  las  obligaciones 
procedentes  de  gastos  que  haya 
heclio  para  la  habilitacion,  repara- 
cion 6  aprovisionamiento  del  bu- 
que, omitiere  enuneiar  la  causa  de 
que  proceden,  quedera  personal- 
meute  obligado  hacia  las  personas 
con  ([uienes  contratare,  sin  per- 
juicio  de  la  aceion  que  estas 
puedan  tener  contra  los  duenos 
del  buque,  si  probaren  que  las 
cantitades  debidas  fueron  efec- 
tivamente  aplicadas  en  beneficio  de 
la  embarcaeion. 

Art.  958.  El  eapitan  no  puede 
retener  a  bordo  los  efectos  de  la 
carga  para  seguridad  del  flete; 
pero  tiene  derecho  a  exigir  de  los 
duenos  6  consignatarios  en  el  acto 
de  la  entrega  de  la  carga,  que 
depositen  6  afiancen  el  importe  del 
flete,  averias  gruesas  y  gastos  a  su 
cargo;  y  en  falta  de  pronto  pago, 
de]i6sito  6  fianza.  podra  requirir 
embargo  por  los  fletes,  averias  y 
gastos  en  los  efectos  del  carga- 
mento,  mientras  estos  se  hallaren 


the   money  was  in  fact  used  for 
the  benefit  of  the  ship  or  cargo. 

Art.  950.  The  obligations  which 
the  captain  may  contract  in  order 
to  effect  the  repairs,  fitting  out, 
and  victualling  of  the  ship,  do  not 
make  him  personally  responsible, 
but  are  binding  on  the  shipowner, 
unless  the  captain  expressl}' 
pledges  his  personal  responsibility 
or  signs  bills  of  exchange  or  bonds 
with  his  own  name. 

Nevertheless,  a  capuiin  who  in 
cases  of  forced  expenditure  for  the 
fitting,  repairing,  or  victualling  of 
his  ship,  omits  to  declare  in  the 
bonds  the  cause  from  which 
they  proceed,  remains  personally 
pledged  to  the  parties  with  whom 
he  has  dealt,  without  prejudice  to 
any  action  these  may  take  against 
the  shipowners,  if  they  can  prove 
that  the  sums  due  Avere  really 
applied  for  the  good  of  ihe  vessel. 


Art.  958.  Tlie  captain  may  not 
detain  on  board  the  goods  of  the 
cargo  as  security  for  freight:  but 
he  has  a  right  to  claim  from  the 
owners  or  consignees,  at  the  time 
of  delivering  the  cargo,  a  deposit 
or  guaranty  for  the  amount  of  the 
freight,  general  average,  and  ex- 
penses incurred,  and  in  default  of 
immediate  payment,  deposit,  or 
guaranty,  he  can  lay  an  embargo 
on  the  goods  of  the  carg-o  for 
freight,  averages,  and  expenses  in- 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


445 


en  poder  de  los  duenos  6  cousigna- 
tarios,  ya  lesten  en  los  almacenes 
publicos  de  deposito  6  fuera  de 
ellos,  J  hasta  podra  requerir  la 
venta  immediata,  si  los  efectos 
fuesen  facilmente  deteriorables  6 
de  conservacion  difieil  6  dispen- 
diosa. 

La  accion  de  embargo  queda 
prescrita  pasados  treinla  dias, 
contados  desde  el  ultimo  dia  de  la 
descarga. 

Art.  960.  Cuando  por  ausencia 
del  consignatario,  por  su  negativa 
a  recibir  la  carga,  6  por  no  pre- 
sentarse  portador  legitime  de  los 
conocimientos  a  la  orden,  iguorare 
el  capitan  a  quien  haya  de  hacer 
legitimamente  la  entrega  del 
eargamento,  lo  pondra  a  disposi- 
cion  del  Tribunal  de  Comercio,  6 
en  su  defecto,  de  la  autoridad  judi- 
cial local,  para  que  provea  lo  con- 
veniente  a  su  deposito,  conserva- 
cion J  seguridad. 

Asi  en  este  caso  como  en  el  Art. 
958,  si  la  averia  gruesa  no  pudiere 
ser  arreglada  inmediatamente,  es 
licito  al  capitan  exigir  el  deposito 
judicial  de  la  suma  quo  se  arbi- 
trare . 


Art.  961.  El  capitan  que  entre- 
gare  la  carga  antes  de  recibir  el 
flete,  averia  gruesa  y  gastos,  sin 
poner  en  practica  los  medios  del 
articulo  precede nte,  6  los  que  le 
dieren  las  leycs  del  lugar  de  la 
descarga,  no  tendra  accion  para  ' 
exigir  el  pago  del  fletador,  si  este  \ 
probare  que  no  habia  cargado  por 
CTienta  propia,  sino  en  calidad  de 


curred  by  the  said  goods,  whilst 
these  are  in  the  hands  of  the 
owners  or  consignees,  whether  or 
not  the}"-  be  in  public  warehouses, 
and  he  may  even  demand  an  im- 
mediate sale,  if  the  goods  should 
be  easily  deteriorated,  or  difficult 
and  costly  to  preserve. 

The  writ  of  embargo  holds  good 
thirty  days,  counting  from  the  last 
da}^  of  the  discharge. 


Art.  960.  When,  from  the  ab- 
sence of  the  consignee,  or  his  re- 
fusal to  receive  the  cargo,  or  from 
no  properly  authorized  person  ap- 
pearing- with  bills  of  lading  to 
order,  the  captain  does  not  know 
to  whom  he  ought  to  deliver  the 
cargo,  he  must  place  it  at  the 
disposal  of  the  Tribunal  of  Com- 
merce, or  failing  that,  of  the  local 
judicial  authorit}^,  that  it  may  pro- 
vide for  its  due  deposit,  preserva- 
tion, and  security. 

And  in  this  case,  as  in  Art.  9-38, 
if  the  general  average  cannot  be 
adjusted  at  once,  the  captain  may 
lawfully  claim  the  judicial  deposit 
of  such  sum  as  the  Court  shall 
think  fit. 

Art.  961.  Tlie  captain  who  de- 
livers the  cargo  before  receiving 
the  freight,  general  average,  and 
charges,  without  taking  the  mea- 
sures indicated  in  the  preceding- 
Article  or  allowed  b}-  the  law  of 
the  place  of  discharge,  cannot 
maintain  an  action  for  the  pay- 
ment thereof  against  the  shipper, 
if  the  latter  proves  that  he  did  not 


446 


APPENDIX  C. 


comisionista     6     por     ciienta     de 
tercero. 


TIT.  VII. 

De  LOS  Fletamentos. 

From  Cap.  2. 

De  los  derechos  y  obligaciones 
del  fletante  y  fletador. 

Art.  1051.  Svifriendo  el  buque, 
que  en  el  caso  de  los  dos  articiilos 
anteriores  lia  salido  sin  carga,  6 
con  sola  parte  de  la  carga,  alguna 
averia  durante  el  viaje  que  debiera 
considerarse  como  averia  comun  en 
el  caso  de  tener  Integra  la  carga, 
tendra  derecho  el  fletante  a  exigir 
del  fletador  la  contribucion  por  los 
dos  tercios  de  lo  no  cargado. 


Art.  1053.  En  los  cases  en  que 
el  fletante  tiene  derecho  a  em- 
prender  viaje  sin  carga,  6  con  solo 
xina  parte  de  la  carga,  puede,  para 
la  seguridad  del  flete  y  de  las  otras 
indemnizaciones  a  que  haya  lugar, 
tomar  carga  de  otros  individuos, 
sin  consentimiento  del  fletador, 
auque  sea  por  menor  flete,  siendo 
la  difirencia  de  cuenta  del  fletador. 

En  tel    caso,  el    fletador    tiene 


ship  for  his  own  account,  but  as 
a  commission  agent  or  for  the  ac- 
count of  a  third  party. 

TIT.  YII. 

Of  Affreightment. 

From  Cap.  2. 

Of  the  Rights  and  Obligations  of 
the  Shipowner  and  Freighter  (e). 

Art.  1051.  If  the  ship,  having 
in  the  cases  specified  in  the  two 
preceding  Articles  (/),  sailed  with- 
out cargo  or  only  with  part  of  the 
cargo,  has  suffered  damage  which 
would  be  considered  general  aver- 
age if  she  had  a  full  cargo  on 
board,  the  shipowner  has  the  right 
to  claim  from  the  freighter  contri- 
bution for  two-thirds  of  the  cargo 
which  has  not  been  shipped. 

Art.  1053.  In  the  cases  in  which 
the  shipowner  has  the  right  to  sail 
on  the  voyage  without  cargo,  or 
with  only  a  part  cargo,  he  may, 
for  the  security  of  the  freight  and 
of  such  other  indemnities  as  he  can 
claim,  accept  cargo  from  other 
parties,  without  the  consent  of  the 
freighter,  even  at  a  lower  freight, 
the  freighter  being  liable  for  the 
difference. 

In  such  case  the  freighter  is  en- 


(e)  According  to  the  definition  in  Art.  1018.  the  person  who  lets  a  ship  for  the 
carriage  of  merchandize  is  called  the  fletante,  the  person  who  hires  it  is  called  the 
Jletador.  Therefore,  the  term  fletante  has  really  a  wider  meaning  than  .shipowner,  and 
cannot  be  accurately  expressed  by  any  English  word. 

(/)  When  the  lay  days  and  demvirrage  days  have  expired  and  the  freighter  has 
failed  to  load  any  cargo  or  a  full  cargo.  In  such  cases  Arts.  1049  and  1050  give  the 
shipowner  the  right  either  to  complete  the  voyage  and  earn  the  full  freight,  or 
(discharufing  the  cargo  if  any  has  been  loaded)  to  rescind  the  contract  and  claim  half 
the  freight. 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


447 


derecho  al  beneficio  del  nuevo 
flete,  y  en  caso  de  averia  comun, 
no  responde  por  la  contribucion 
que  recaiga  en  los  efectos  que  no 
le  pertenecen:  pero  esta  obligado  ; 
al  pag-o  de  las  indemnizaciones  ' 
-establecidas  en  los  articulos  pre-  I 

I 

cedentes.  j 

Art.  1074.  Si  el  capitan  se  viese  I 
obligado  durante  el  viaje  a  hacer 
reparaciones  urgentes  en  el  buque,  s 
por  casos  de  tempestad,  fuerza 
mayor  6  que  no  provengan  de  su 
culpa,  el  fletador  6  cargador  estara 
obligado  a  esperar  hasta  que  se 
haya  efectuado  la  reparacion,  6 
podi-a  retirar  sus  efectos,  pagando 
el  flete  por  entero,  estadias  y  sobre- 
estadias,  averia  comun,  si  la 
hubiere,  y  gastos  de  desestiva  y 
restiva. 

Art.  1075.  Si  el  buque  no 
admitiere  reparacion,  esta  obligado 
«1  capitan  a  fletar  por  su  cuenta,  y 
sin  poder  exigir  aumento  de  flete, 
tmo  6  mas  buques  para  el  tras- 
porte  de  la  carga  al  lugar  de  su 
destino. 

Si  el  capitan  no  pudiese  fletar 
•otros  buques,  se  depositara  la 
carga  por  cuenta  de  los  fletadores 
en  el  puerto  de  la  arribada,  regu- 
landose  el  flete  del  buque  que 
quedo  inservible,  en  razon  de  la 
distanzia  recorrida. 

En  este  ultimo  caso,  el  trasporte 
-de  las  mercaderias  correspondera 
a  los  cargadores,  salva  la  obliga- 
•cion  del  capitan  de  notificarlcs  la 
-situacion  en  que  se  halla,  debicndo 
tomar  en  el    intervale    todas    las 


titled  to  the  beneflt  of  the  new 
freight,  and  in  the  event  of  general 
average,  he  is  not  liable  for  the 
contribution  of  the  goods  that  do 
not  belong  to  him:  but  he  is  liable 
to  pay  the  indemnities  prescribed 
in  the  preceding  Articles. 


Art.  1074.  If  a  captain  finds 
himself  obliged  in  the  course  of 
his  voyage  to  have  urgent  repairs 
effected  to  his  ship,  either  from 
storms,  vis  major,  or  any  cause 
not  his  own  fault,  the  freighter  or 
shipper  must  wait  until  the  re- 
pairs are  done;  or  he  may  with- 
draw his  goods,  paying  the  freight 
in  full,  demurrage  and  extra  de- 
murrage, general  average  if  there 
be  any,  and  costs  of  unstowing 
and  restowing. 

Art.  1075.  If  the  ship  is  past 
repairs,  the  captain  is  bound  to 
hire  one  or  more  vessels  at  his  own 
expense  and  without  claiming  any 
increase  of  freight,  to  convey  the 
cargo  to  its  port  of  destination. 

If  the  captain  cannot  hire  other 
vessels,  he  must  warehouse  the 
cargo  at  the  port  of  refuge  on  be- 
half of  the  freighters,  the  freight 
of  the  disabled  ship  being  regu- 
lated in  proportion  to  the  distance 
performed. 

In  the  last  mentioned  ease,  the 
transportation  of  the  goods  con- 
cerns the  freighters,  subject  to  the 
obligation  of  the  captain  to  notify 
the  situation  in  which  he  is  placed, 
he  being  bound  during  the  interval 


448 


APPENDIX  C. 


medidas  necesarias    para    la  con- 
servacion  de  la  carga. 

Art.  1076.  Si  los  cargadores 
justificaren  que  el  buque  que  quedo 
inservible  no  estaba  eu  estado  de 
naveg-ar  cuando  recibio  la  carga,  no 
podra  exigirseles  los  fletes,  y  ten- 
dran  derecho  a  que  el  fletante  les 
indemnice  todos  los  dafios  y  per- 
juicios. 

Esta  prueba  sera  admisible  a 
pesar  del  certificado  de  visita  sobre 
la  aptitud  del  buque  para  em- 
prender  el  viaje. 

Art.  1085.  Pagan  el  flete  in- 
tegro  segun  lo  j)^*^*^^^  en  la 
poliza  de  fletamento,  los  efectos 
que  sufran  deteriora  6  disminu- 
cion  por  hecho  de  que  non  sea  re- 
sponsable  el  capitan. 

Los  efectos  que  por  su  natii- 
raleza  son  susceptibles  de  aumento 
6  disminucion  se  aumentaran  6 
disrainuiran  para  sus  duenos.  En 
uno  y  en  otro  caso,  se  paga  el 
flete  por  lo  que  se  cuente,  mida 
6  pese  en  el  acto  de  la  descarga. 

Art.  1086.  Pagan  flete  por  entero 
los  efectos  que  el  capitan  se  haya 
visto  obligado  a  vender  en  los  cases 
previstos  en  el  articulo  947. 

El  flete  de  los  efectos  arrojados 
al  mar  para  salvacion  comun  del 
buque  6  carga,  se  paga  por  entero 
como  averia  gruesa. 

Art.  1087.  No  se  debe  flete  de 
los  efectos  que  se  hubiesen  perdido 
por  naufragio  6  varaiuiento,  ni  de 
los  que  fueron  presa  de  piratas  6 
enemigos,  y  si  se  hubiese  pagado 


to  take  all  necessary  measures  for- 
the  preservation  of  the  cargo. 

Art.  1076.  If  the  shippers  can 
prove  that  the  ship  now  disabled 
was  not  in  a  seaworthy  state  when 
she  took  in  cargo,  the  freights 
cannot  be  claimed  from  them,  and 
they  are  entitled  to  claim  from  the 
shipowner  all  costs  and  damages. 

This  proof  shall  be  admissible, 
giving  due  weight  to  the  certificate 
of  survey  as  to  the  fitness  of  the 
ship  to  undertake  the  voyage. 

Art.  1085.  Goods  which  have 
suffered  deterioration  or  diminu- 
tion from  causes  for  which  the 
captain  is  not  responsible,  pay  full 
freight  according  to  the  terms  of 
the  charter-part3^ 

The  increase  or  diminution  of 
goods,  which  from  their  nature  are 
liable  to  increase  or  diminish,  is 
at  the  risk  of  their  owners.  In 
either  case,  freight  is  paid  accord- 
ing to  the  number,  measurement 
or  weight  at  the  time  of  discharge. 

Art.  1086.  Goods  which  the  cap- 
tain has  been  obliged  to  sell  in 
the  cases  provided  for  in  Art.  947 
must  pa}''  freight  in  full. 

The  freight  of  goods  jettisoned 
for  the  common  safety  of  ship 
or  (sic)  cargo  is  paid  in  full  as 
general  average. 

Art.  1087.  No  freight  is  due  for 
goods  which  are  lost  by  shipwreck 
or  stranding,  nor  for  those  which 
have  been  seized  by  pirates  or 
enemies;  and  if  any  has  been  ad- 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


449 


adelantado,  habra  lugar  a  repe- 
tirlo,  no  mediando  estipulacion 
contraria . 

Art.  1088.  Rescatandose  el 
buque  y  carga,  declarandose  mala 
presa,  6  salvandose  del  naufrag-io, 
se  debe  el  flete  hasta  el  lugar  de 
la  presa  6  del  naufragio,  propor- 
eionalmeute  al  flete  estipulado,  y 
si  el  capitan  llevase  los  efectos 
hasta  el  puerto  de  su  destine,  se 
abonara  el  flete  por  entero,  contri- 
buyendo  como  averia  gruesa  al 
dano  6  rescate. 

Si  los  Uevare  a  otro  puerto  que 
al  de  su  destine,  por  no  poder  ir 
adelante,  el  flete  se  debe  hasta  el 
lugar  de  la  arribada. 


Art.  1089.  Salvandose  en  el  mar 
6  en  las  playas,  sin  cooperacion  de 
la  tripulacion,  fuera  del  caso  del 
articulo  1086,  efectos  que  hicieron 
parte  de  la  carga,  y  siendo  entre- 
gados  por  personas  extrafias,  no  se 
debe  por  ellos  flete  alguno. 

Art.  1090.  El  cargador  no  puede 
hacer  abandono  de  los  efectos  en 
pago  de  fletes,  a  no  ser  tratandose 
de  liquidos,  cuyas  vasijas  hayan 
perdido  mas  de  la  mitad  de  su 
contenido. 

Art.  1091.  El  contrato  de  fleta- 
mento  de  un  buque  extranjero  que 
haya  de  tener  ejecucion  en  la  Re- 
publica,  debe  ser  juzgado  por  las 
reglas  establecidas  en  este  Codigo, 
ya  haya  side  estipulado  dentro  6 
fuera  de  la  Republica. 


vaneed,  its  return  may  be  de- 
manded, if  there  was  no  stipula- 
tion to  the  contrary. 

Art.  1088.  If  ship  and  cargo  are 
ransomed,  or  declared  wrongly 
captured,  or  are  saved  from  ship- 
wreck, freight  is  due  to  the  place 
of  such  capture  or  wreck,  in  pro- 
portion to  the  freight  agreed,  and 
if  the  captain  brings  the  goods  to 
the  port  of  destination,  the  freight 
must  be  paid  in  full,  contributing 
as  general  average  to  the  damage 
or  ransom. 

If  he  takes  them  to  some  other 
port  than  the  port  of  destination 
because  he  could  go  no  further, 
freight  is  due  to  the  place  where 
he  has  arrived. 

Art.  1089.  If  goods  forming  part 
of  the  cargo  are  saved  either  at  sea 
or  on  the  beach,  without  the  crew's 
help,  excepting  in  the  case  of  Art. 
1086,  and  are  delivered  by 
strangers,  no  freight  at  all  is  due 
for  them. 

Art.  1090.  The  shipper  may  not 
abandon  his  goods  in  payment  of 
freight,  excepting  in  the  case  of 
liquids,  the  vessels  of  which  have 
lost  more  than  half  of  their  con- 
tents . 

Art.  1091.  The  contract  of  af- 
freightment of  a  foreign  vessel 
which  has  to  be  fulfilled  in  the  Re- 
public, must  be  judged  according 
to  the  rules  of  this  Code,  whether 
it  has  been  effected  in  the  Republic 
or  not. 

G  G 


450 


APPENDIX  C. 


From  Cap.  3. 

De  la  resolucion  de  los  contratos 
de  fletamento. 

Art.  1095.  Cuando  un  buque  ha 
sido  fletado  j)ara  varies  destines, 
y  hallandose  despues  de  acabado 
un  viaje,  en  un  puerto  en  que 
debia  empezar  otro,  sobreviniese 
guerra,  antes  de  empezado  el 
nuovo  viaje,  se  observeran  las 
siguientes  disposiciones : 

Is.  Si  ni  el  buque  ni  la  cargason 
libres,  debera  el  buque  permanacer 
■en  el  puerto  liasta  la  paz,  6  hasta 
que  pueda  salir  en  convoy  6  de 
otro  mpdo  seguro,  6  hasta  que  el 
capitan  reciba  nuevas  instruc- 
ciones  de  los  duenos  del  buque  y 
de  la  carga.  Hallandose  earo-ado 
el  buque,  podra  el  capitan  de- 
positar  la  carga  en  lugar  seguro, 
hasta  que  pueda  continuar  viaje, 
6  se  tomen  otras  medidas.  Los 
salaries  y  manutencion  de  la  tri- 
pulacion,  alquileres  de  almacen  y 
demas  gastos  ocasionados  por  la 
demora,  asi  en  este  caso  como  en  el 
de  no  liallarse  cargado  el  buque, 
se  repartiran  como  averia  grviesa 
■entre  el  fletante  y  fletador;  si  el 
buque  no  estuviese  cargado  to- 
davia,  los  dos  tercios  de  los  gastos 
seran  por  cuenta  del  fletador; 


2^.  Si  solo  el  buque  no  es  libre, 
se  rescinde  a  instancia  del  fletante 
■el  contrato  para  el  viaje  que  tenia 
que  hacerse.  Estando  el  buque 
cargado,  el  fletante  6  capitan 
pagara  los  gastos  de  la  carga  y 


From  Cap.  3. 

Of  the  Performance  of  Contracts 
of  Affreightment. 

Art.  1095.  When  a  ship  has  been 
chartered  for  several  destinations, 
and  is  at  the  conclusion  of  one 
voyage  at  a  port  where  she  ought 
to  begin  another,  and  war  breaks 
out  before  she  sails  on  the  new 
voyage,  the  following  provisions 
are  to  be  applied:  — 

1.  If  neither  the  ship  nor  the 
cargo  is  free  to  leave,  the  ship 
must  remain  in  the  port  until 
peace  is  concluded,  or  until  she  can 
sail  under  convoy  or  in  some  other 
safe  manner,  or  until  the  captain 
receives  new  instructions  from  the 
owners  of  the  ship  and  cargo. 
Should  the  ship  be  loaded,  the  cap- 
tain may  deposit  the  cargo  in  a 
safe  place,  until  he  can  continue 
the  voyage,  or  until  other  measures 
can  be  taken.  The  wages  and 
maintenance  of  the  crew,  ware- 
house rent,  and  other  expenses 
caused  by  the  delay  both  in  this 
case  and  when  the  ship  has  not 
been  loaded,  are  divided  as  general 
average  between  the  shipowner 
and  the  freighter.  If  the  ship  has 
not  been  loaded,  two-thirds  of  the 
expenses  shall  be  charged  to  the 
charterer. 

2.  If  the  ship  only  is  not  free 
to  leave,  the  contract  may  be  res- 
cinded by  the  shipowner  with  re- 
gard to  the  voyage  which  was 
about  to  be  commenced.  Should 
the  ship  be  loaded,  the  shipowner 


THE  LAW  OF  THE  ARGENTINE  REPUBLIC. 


451 


-descarga.  En  tal  caso,  solo  podra 
exigir  el  flete,  en  proporcion  del 
viaje  ya  hecho,  estadias  j  sobre- 
estadias  y  averia  gruesa  si  la 
iiabiere; 


3^.  Si  por  el  contrario,  el  buque 
66  libre  y  la  carga  no  lo  es,  el 
fletador  tiene  derecho  para  re- 
scindir  el  coixtrato,  pagando  los 
gastos  d,e  carga  y  descarga  y 
demas  indicados  en  los  dos  arti- 
culos  precedentes,  y  el  capitan  en 
su  caso  podra  proceder  conforme 
a  lo  dispuesto  en  los  articulos 
1049  y  1053. 


or  captain  must  pay  the  expenses 
of  loading  and  unloading.  In  such 
case,  he  is  only  entitled  to  freight 
in  proportion  to  the  voyage 
already  accomplished,  demurrage 
and  extra  demurrage,  and  general 
average  if  there  has  been  any. 

3.  If,  on  the  contrary,  the  ship 
is  free  and  the  cargo  is  not,  the 
freighter  is  entitled  to  rescind  the 
contract,  paying  the  expenses  of 
loading  and  discharging,  and  the 
other  expenses  specified  in  the  two 
preceding  articles  (g),  and  the 
captain  may  proceed  in  accordance 
with  the  provisions  of  Arts.  104P 
and  1053. 


[ff)  I.e.,  the  expenses  of  equipping  the  ship,  wages  and  maintenance  of  the  crew 
until  the  rescission  (jr  unloading,  and  demurrage,  &c.  and  general  average  incurred 
before  the  rescission. 


G  G  2 


452  APPENDIX  D. 


APPENDIX  D. 


THE  LAW  OF  AUSTRIA. 

The  Editors  have  been  informed  by  Mr.  Fillipo  Artelli,  Averag-e 
Adjuster,  of  Trieste,  that  the  Austrian  Law  of  General  Average  has 
undergone  no  change  for  many  years,  and  is  correctly  described  in 
Mr.  Crourlie's  learned  work  on  General  Average,  for  which  he  supplied 
information  thirty  years  ago.  It  appears  that  in  the  absence  of  a 
commercial  Code,  the  rules  on  which  the  average  adjusters  base  their 
apportionments  are  mainly  derived  from  the  Code  Napoleon.  The 
following  statement  of  the  principal  rules  arranged  in  the  order  of  this 
treatise  is  derived  from  Mr.  Gourlie's  book. 

General  Principles. 

A  general  average  act  must  be  voluntary  and  deliberate,  done  to 
escape  an  imminent  danger  and  preceded  by  a  consultation  between  the 
master  and  crew.  The  consequences  of  a  general  average  act  are 
also  general  average,  and  this  principle  is  even  applied  in  some  cases 
to  losses  which  are  only  the  accidental  consequences  of  the  general 
average  act,  e.g.,  to  the  loss  by  fire,  or  robbery,  of  goods  warehoused 
at  a  port  of  refuge  while  the  shij)  is  being  repaired.  So,  also,  if  sea- 
men desert  at  a  port  of  refuge,  the  cost  of  replacing  the  deserters  is 
allowed  in  general  average,  if  the  desertion  was  not  the  captain's 
fault,  on  the  ground  that  they  could  not  have  escaped  if  the  ship  had 
not  put  into  the  port. 

If  a  sacrifice  be  fruitless,  nothing  being  saved  thereby,  there  is  no 
contribution;  but  if,  subsequently  to  a  sacrifice,  the  ship  be  lost,  yet 
the  cargo  is  finally  saved,  it  contributes  to  the  sacrifice. 

Goods  subsequently  lost  do  not  contribute  to  a  general  averag-e  ex- 
penditure . 

There  is  no  apportionment  in  g-eneral  average  in  the  case  of  a  vessel 
in  ballast,  but  the  shipowner,  if  insured,  can  claim  for  the  sacrifice 
against  the  underwriters  on  slii]). 

Sacrifices  of  Cargo. 
The  jettison  of  deck  cargo  is  not  general  average,  except  on  short 
coasting  voyages,  or  when  there  is  a  special  contract  agreed  to  by  all 
the  shippers,  which  allows  the  cargo  to  be  carried  on  deck. 


I 


THE  LAW  OF  AUSTRIA.  453 

Cargo  jettisoned  because,  as  a  result  of  damage  or  of  its  inherent 
vice,  it  endangers  the  ship  and  the  rest  of  the  cargo,  is  contributed  for 
in  general  average  to  the  extent  of  the  loss  caused  by  the  sacrifice. 

Damage  incidental  to  jettison,  e.g.,  to  other  goods  by  seas  shipped 
A\]iile  the  hatches  are  open,  or  by  the  derangement  of  stowage  after 
the  jettison,  is  general  average. 

Damage  to  cargo  by  Avater  used  to  extinguish  a  fire  on  l:)oard  the  ship 
is  general  average,  even  in  the  case  of  packages  themselves  on  fire. 

Cargo  iLsed  as  fuel  in  an  eraergencj^  is  contributed  for  in  general 
average,  provided  that  a  supply  of  fuel  amply  sufficient  for  an  ordinary 
voyage  had  been  taken  on  board. 

Money  or  goods  given  to  captors  by  way  of  ransom  for  the  ship 
and  cargo  are  allowed  in  general  average,  and  it  is  stated  that  even 
"  where  the  captors  seize  such  valuables  and  release  the  rest  of  the 
property,  this  loss  is  also  compensated  for,  because,  though  not  given 
but  taken  aivay  by  the  captors,  the  general  average  condition  remains." 
(Gourlie,  p.  370.) 

Loss  of  or  damag-e  to  cargo  discharged  into  lighters  to  refloat  a 
stranded  vessel,  or  unloaded  at  a  port  of  refuge  to  allow  the  ship  to  be 
repaired,  is  general  average.  The  freight  of  goods  sacrificed  must 
be  paid  to  the  captain,  as  in  computing  the  amount  to  be  made  good 
to  the  owner  of  the  goods,  the  freight  is  not  deducted  from  their  value 
at  their  destination. 

Sacrifices  of  Ship. 

The  jettison  of  ship's  stores  is  not  allowed  as  general  average  when 
they  are  improperly  carried  on  deck.  Thus,  water  casks  or  hawsers 
kept  on  deck  are  only  contributed  for  on  short  coasting  voyages.  On 
other  voyages  it  is  the  duty  of  the  captain  to  keep  them  below. 

Damage  by  carrying  a  press  of  sail  is  treated  as  general  average, 
but  it  seems  that  effect  is  not  given  to  this  ride  unless  the  necessity 
for  the  press  of  sail  is  clearly  proved. 

The  loss  of  masts  and  other  ship's  materials  cut  away  to  save  the 
shi})  is  general  average,  even  when  they  are  in  a  state  of  wreck;  but 
the  damage  sustained  before  the  sacrifice  is  in  that  case  deducted.  So 
also  anchors  and  cables  slipped  or  cut  away  to  avert  a  loss,  are  con- 
tribut/ed  for. 

Loss  of,  or  damage  to,  ship's  materials  in  the  efforts  made  to  refloat 
a  stranded  vessel  is  general  average,  as  is  also  damage  to  the  machinery, 
and  fuel  expended,  for  the  same  purpose. 

Damage  to  the  ship  in  defending  her  against  an  enemy,  the 
annnunition  expended  and  the  cost  of  caring  for  the  Avounded,  are 
allowed  ill  general  average. 

When  the  ship  is  wrecked,  damag-e  done  by  cutting  open  her  sides 
or  deck  to  save  cargo  must  be  made  good  by  the  cargo. 


454  APPENDIX  D. 

Voluntary  Stranding . 

Damage  by  voluntary  stranding-  is  allowed  in  general  average,  unless 
the  ship  is  not  saved.  If  the  ship  must  inevitably  go  ashore,  the 
master  only  having  the  power  to  guide  the  ship  to  the  least  dangerous 
spot,  the  stranding  is  not  considered  voluntary. 

Port  of  Refuge  Expenses. 

The  expenses  of  entering  a  port  of  refuge  for  necessary  repairs,  and 
of  leaving  it,  are  general  average,  including  pilotage,  towage,  port 
dues,  &c.,  and  the  cost  of  fuel  consumed  by  a  steamship  in  bearing 
away. 

A  distinction  seems  to  be  made  between  the  loss  of  the  vessel  and 
damage  done  to  her,  if  she  strands  in  entering  the  port  of  refuge.  The- 
former  is  not  general  average,  apparently  the  latter  is. 

If  the  cargo  has  to  be  discharged  for  the  repairs,  the  expenses  of 
unloading,  storing,  reloading,  and  stowing  it  are  general  average.  As 
we  have  already  mentioned,  a  loss  of  the  goods  by  fire  or  robbery  while 
they  are  in  the  warehouse  is  also  allowed  in  general  average.  Generally 
speaking,  the  expenses  specially  incurred  to  preserve  the  cargo  from 
deterioration  after  the  discharge  fall  on  the  cargo  alone;  but  some 
allowance  might  be  made  for  the  cost  of  their  preservation,  if  the 
period  of  warehousing  was  extraordinarily  prolonged. 

When  cargo  has  to  be  unloaded  solely  on  account  of  its  damaged 
condition,  the  expenses  of  discharging  and  reconditioning  it  are  a 
charge  on  the  cargo  alone.  When,  however,  the  discharge  is  necessary 
both  for  the  repair  of  the  ship  and  on  account  of  the  damaged  state  of 
the  carig'O,  the  expense  of  the  discharge  is  divided. 

If  it  be  impossible  to  reload  goods,  such  as  cotton,  unloaded  at 
the  port  of  refuge,  owing  to  the  lack  of  appliances  for  pressing  them, 
the  loss  to  the  owner  of  the  goods  is  treated  as  general  average. 
There  would  be  no  loss  of  freight  to  the  shipoumer,  as  the  freight 
would  have  to  be  paid  in  full. 

The  cost  of  temporary  repairs  at  a  port  of  refuge  is  general  average, 
as  is  also  the  cost  of  forwarding  cargo  by  another  ship,  to  avoid  the 
cost  of  landing  and  warehousing. 

The  wages  and  maintenance  of  the  crew  while  tlie  ship  is  being 
repaired  are  allowed  in  general  average;  but  no  allowance  would  be 
made  for  a  further  delay  caused  by  the  port  becoming  frozen  up, 
as  this  delay  would  be  due  to  an  accidental  cause,  not  to  a  general 
average  sacrifice. 

In  case  of  delay  at  the  port  of  loading  or  of  destination,  in  con- 
sequence of  a  general  average  loss,  the  port  would  be  treated  as  a 
port  of  refuge,  and  the  additional  port  expenses  and  the  wages  and 
maintenance  of  the  crew  during  the  delay  allowed  in  general  average. 


THE  LAW  OF  AUSTRIA.  45':> 

The  costs  of  raising-  funds  to  defray  g-eneral  average  expenses,  such 
as  the  premium  on  a  bottomry  loan,  commissions,  insurance  of 
advances,  loss  on  cargo  sold  to  raise  the  money,  are  allowed  in  general 
average . 

Salvage. 

The  expenses  of  salving  the  shi[)  and  cargo  are  usuall}-  general 
average;  but  in  the  case  of  complex  salvage  operations,  the  expenses 
particular  to  one  interest  are  charged  to  that  interest. 

Adjustment  of  Ge)ieral  Average. 

The  proper  place  of  adjustment,  when  the  vessel  accomplishes  the 
voyage  with  the  cargo  on  board,  is  the  final  port  of  discharge. 

When  the  voyage  is  broken  up  at  a  port  of  refuge,  the  adjustment 
is  made  there,  and  the  carg'o  is  bound  by  a  bond,  enforceable  when 
it  reaches  its  destination,  to  pay  its  contribution.  If,  however,  the 
ship  and  cargo  are  both  sold  at  the  port  of  refug-e,  this  port  is  the 
proper  place  for  the  adjustment  of  the  general  average  and  payment 
of  contributions  according  to  the  law  of  that  place. 

If  the  ship  is  obliged  by  an  accident  to  return  to  the  port  of  de- 
parture, tlie  same  rule  applies  as  in  the  case  of  any  other  port  of 
refuge.  To  avoid  litigation,  tlie  usual  mode  of  adjustment  in  Austria 
is  to  appoint  two  adjusters  who,  under  the  terms  of  the  average  bond, 
are  in  the  position  of  arbitrators  and,  if  they  differ,  have  the  tight 
to  appoint  a  third  adjuster  as  umpire,  their  decision  or  that  of  the 
umpire  being  final. 

Amount  made  good. 

The  amount  made  good  for  cargo  sacrificed  is  the  market  price 
of  the  goods  at  their  destination,  without  deducting  the  freight,  which 
must  be  paid  to  the  captain. 

One-third  is  usually  deducted  from  the  cost  of  repairs  to  ship,  but 
no  deduction  is  made   in  the  ca.se   of  a   vessel    which  has   not   been 
afloat  for  a  year,  and  the  cost  of  replacing-  anchors,  chains  aud  other    . 
iron  articles  is  allowed  in  full.     Interest  is  allowed  on  all  claims  made 
good  in  general  average. 

Contributing  Interests  and  Values. 

The  cargo  contributes  on  its  value  at  the  place  where  the  different 
interests,  i.e.  ship,  freight  and  cargo  separate,  the  freight  and  ex- 
penses of  landing,  such  as  duty,  landing-charges,  &c.,  being  deducted. 
No  dediiction  is  made  on  account  of  insurance  premiums  or  expenses 
of  sale.  Deck  cargo  contributes,  even  though  it  would  not  have  been 
contributed  for,  if  lost. 


456  APPENDIX  U. 

The  vessel  contributes  ou  one-half  of  her  value,  as  estimated  b}^ 
surve^'ors,  in  her  condition  as  saved  at  the  port  of  destination.  The 
amount  made  g-ood  to  her  also  contributes  ou  one-half  of  the  allowance. 

The  freight  contributes  on  one-half  of  the  gro.ss  amount  at  risk 
when  the  general  average  act  occurred,  including  freight  paid  in 
advance  and  the  freight  of  goods  sacrificed,  as  the  latter  freight  is 
not  deducted  from  the  market  price  of  the  goods,  and  is  paid  to  the 
captain . 

Where,  however,  the  vessel  is  wrecked  or  condemned  at  an  inter- 
nifcdiare  port,  and  the  cargo  is  sold  there  or  forwarded  to  its  destina- 
tion, so  that  the  original  vessel  only  receives  distance  freight,  the 
contribution  is  only  on  one-half  of  the  amount  of  the  distance  freight. 

The  chartered  freight  of  a  vessel  in  ballast  does  not  contribute, 
as  an  adjustment  is  not  considered  necessary  in  this  case. 

Money  lent  on  bottomry  contributes,  as  do  bank-notes  and  securities, 
if  they  are  not  replaceable  in  case  of  loss. 

Specie  contributes  on  its  full  value,  but  if  saved  soon  after  a  strand- 
ing, is  not  usually  made  to  contribute  to  subsequent  salvage  expenses. 

Provisions,  ammunition,  and  the  wages  and  effects  of  the  crew  do 
not   contribute,   though  they   are   contributed   for,   if  sacrificed. 


(      457     ) 


APPENDIX  E. 


THE  LAW  OF  BELGIUM. 

The  editors  are  indebted  to  Mr.  Leon  Van  Peborg-h,  average  adjuster, 
of  Antwerp,  for  the  following-  memorandum  on  the  law  of  Belgium 
relating-  to  general  average  and  maritime  commerce:  — 

In  Belgium  maritime  commerce  was  governed  by  the  provisions  of 
Book  XI.  of  the  French  Code  de  Commerce  of  1807,  until  on  the 
21st  April,  1879,  tlie  Legislature  (utilizing-  the  labours  of  the  Con- 
ferences of  the  "Association  for  the  Reform  and  Codification  of  the 
Law  of  Nations,"  which  had  resulted  in  the  adoption  of  the  "York- 
Antwerp  Rules  ■'  for  the  regulation  of  general  average)  promulgated 
a  special  law,  which  from  that  date  constituted  Book  II.  of  the  Belgian 
Code  de  Commerce.  This  law  deals  Avith  the  legal  position  of  ship- 
owners and  seamen,  average  and  its  adjustment,  the  carriage  of  pas- 
sengers, mortgages  of  vessels,  bottomry,  marine  insurance,  collision, 
pleas  in  bar  and  limitations. 

It  was  soon  noticed  that  although  the  law  of  the  21st  April,  1879, 
had  to  some  extent  modernized  the  law,  and  had  in  particular  made 
the  law  of  general  average  approximate  to  the  York-Antwerp  Rules, 
it  had  made  no  change  in  the  Code  de  Commerce  of  1807  with  regard 
to  rights  in  rem,  did  not  deal  at  all  with  inland  navigation,  <lid  not 
limit  the  liability  of  shipowners,  and  continued  an  anti(|uated  system 
of  pleas  in  bar  and  limitations. 

It  needed  long-continued  and  jiei-sistent  efforts  on  the  part  of  the 
"  Belo-ian  As.soeiation  for  tlie  Unification  of  Maritime  Law  "  (which 
is  afiiliated  to  the  "  International  Maritime  Committee  "  founded  at 
Antwerp  in  1897),  to  induce  the  Belgian  Government  to  present  a  BiU 
to  the  Legislative  Chambers  for  the  purpose  of  remedying  these  defects. 
At  last,  however,  the  Law  of  the  10th  February,  1908,  was  passed, 
Avhich  repealed  and  took  the  place  of  the  Law  of  the  21st  April,  1879, 
and  brought  the  Belgian  legislation  with  regard  both  to  deep-sea  and 
inland  navigation  into  harmony  with  modern  requirements.  A  brief 
account  of  this  measure  may  be  interesting. 

The  Law  of  the  10th  Februarj-,  1908,  reproduces  tJie  provisions  of 
the  former  law  on  several  subjects,  especially  average  and  its  adjust- 


458  APPENDIX  E. 

mejQt.  It  has  re -organized  the  system  of  reg-istratiou  of  ships,  and 
of  craft  eng-aged  in  inland  navigation. 

The  register  of  merchant  shipping  is  based  on  the  names  of  vessels, 
but  there  are  supplementary  registers  of  the  names  of  the  owners. 

The  new  Law  has  larg-ely  reduced  the  number  of  liens  which  took 
precedence  of  mortgages,  and  has  limited  their  duration.  Thus,  the 
only  liens  that  remain,  besides  those  for  legal  expenses  and  the  wages 
of  the  crew  for  six  months,  are  the  liens  for  salvage  and  collision 
damage.  These  liens  expire  at  the  end  of  one  year  from  the  time 
when  they  came  into  existence. 

It  has  simplified  and  improved  the  rules  relating  to  hypothecation, 
and  assimilated  them  to  the  resolutions  of  the  Venice  Conference  of 
1907,  which  were  inspired  by  one  dominant  principle,  viz.,  to  place 
maritime  credit  on  a  sound  basis,  under  practical  conditions  which 
correspond  more  to  the  real  necessities  of  modern  navigation  than 
to  theoretical  considerations,  derived  from  the  civil  law  and  tradi- 
tional ideas.  It  has  also  enabled  the  mortgagee,  whenever  the  mort- 
gagor has  made  default,  to  place  a  captain  of  his  choice  on  board  the 
ship,  by  means  of  a  simple  order  of  Court.  It  places  no  obstacle 
in  the  way  of  mortg-ages  by  means  of  bearer  debenture-bonds. 

It  has  modernized  the  law  relating-  to  abandonment.  While  affirm- 
ing the  civil  responsibility  of  the  shipowner  for  the  acts  of  the  captain 
and  crew,  and  for  the  contractual  obligations  of  the  captain  incurred 
in  the  performance  of  his  duties,  it  enables  the  shipoAvner  to  free 
himself  from  all  liability  either  by  abandoning  the  ship  and  freight, 
or,  as  an  alternative  to  the  abandonment  of  the  ship,  by  paying  its 
value  at  the  end  of  the  voyage  or  a  sum  corresponding  for  each  voyage 
to  200  francs  per  ton  of  the  ship's  gross  register.  This  limitation 
of  liability  is  available  against  the  claims  of  the  State  and  of  publio 
authorities. 

This  law  abolished  the  numerous  pleas  in  bar  formerly  allowed. 
Thus  it  has  become  imnecessary  to  make  a  protest  by  a  bailiff  (huissier) 
Avithin  twenty-four  hours,  and  to  issue  a  writ  Avithin  a  month,  in  cases 
of  collision,  general  average  and  marine  insurance.  It  is  sufficient 
in  order  to  recover  for  general  average  or  short  delivery  of  cargo  to 
protest  by  an  ordinary  letter  Avithin  forty-eight  hours  of  the  deliver^'- 
of  cargo,  and  to  folloAv  up  this  protest  Avithin  a  month  by  entering- 
an  action  in  court.  Even  these  conditions  need  not  be  complied  with, 
when  the  matter  has  been  regularly  authenticated  before  the  unloading 
of  the  cargo. 

A  valuation  can  be  obtained  by  a  simple  request;  as  can  an  order 
for  the  deposit  or  sequestration  of  goods,  or  their  sale  to  the  amount 
of  the  freight. 

Finally,  this  Law  has  assimilated  inland  navigation  to  deep-sea 
navigation  in  essential  matters,  especially  Avith  regard  to  bills  of  lading,. 


THE  LAW  OF  BELGIUM.  459' 

general  average,  insiu'ance  and  collision.  An  exception  has,  however, 
been  made  with  regard  to  Art.  154,  which  relates  to  tlie  jettison  of 
deck-cargo,  and  of  goods  for  which  there  is  neither  a  bill  of  lading 
nor  a  declaration  by  the  captain.  This  article  is  only  applicable  to  sea 
voyages . 

We  have  already  seen  that  the  Law  of  the  10th  February,  1908,  has 
not  altered  the  provisions  of  the  Law  of  the  21st  April,  1879,  relating* 
to  general  average  and  its  adjustment.  Only  the  numbering  of  the 
sections  has  been  changed.  It  may,  however,  be  convenient  to  indi- 
cate the  changes  which  were  effected  by  the  Law  of  1879,  and  ^v]lich 
brought  the  Belgian  Code  de  Commerce  into  closer  agreement  with 
the  York-Antwerp  Rules. 

Art.  147  of  the  existing  Law,  re-enacting  Art.  102  of  the  Law  of 
1879,  omits  the  detailed  .specification  contained  in  Art.  400  of  the 
Code  of  1-807,  and  only  retains  the  final  paragraph  thereof,  which  i& 
as  follows:—"  Extraordinary  expenses  incurred,  and  damage  sustained 
voluntarily  for  the  common  good  and  safety  of  the  ship  and  cargo ^ 
are  general  average.     All  other  averages  are  particular." 

But  a  supplementary  Article  No.  148  (No.  103  in  the  Law  of  1879,. 
in  which  it  was  for  the  first  time  enacted)  includes  in  general  average 
the  expenses  of  any  port  of  refuge  made  in  consequence  of  a  sea  peril 
common  to  ship  and  cargo,  including  in  these  expenses  the  wages- 
and  victuals  of  the  crew  from  the  time  of  entering  the  port  of  refuge 
to  the  time  when  the  ship  has  again  been  made  fit  to  continue  its 
voyage.  As  a  consequence  of  this  provision,  and  in  conformity  with 
the  discussions  in  the  legislative  Chambers,  the  cost  of  discharging 
the  cargo,  the  warehouse  charges,  and  tlie  expenses  of  entering  and 
leaving  the  port,  &c.,  are  also  allowed  as  general  average.  They  are 
considered  part  of  the  expenses  resulting  directly  from  putting  into 
the  port  of  refuge. 

Art.  149  (Art.  104  in  the  Law  of  1879),  modifying  Arts.  401  and 
404  of  the  Code  of  1807,  provides  that  general  average  shall  be  borne 
by  the  goods,  the  ship  and  the  net  freight,  in  proportion  to  their 
values.  Under  the  Code  of  1807,  the  ship  and  freight  contributed 
only  on  the  half  of  their  values. 

Art.  150  (Art.  105  in  the  Law  of  1879)  has  modified  the  Code  of 
1807  by  fixing,  as  the  equivalent  of  the  net  freight,  half  the  gross 
amount  of  so  much  of  the  freight  as  has  not  been  paid  in  advance 
or  is  liable  to  be  repaid. 

Arts.  152  and  155  (Arts.  107  and  110  in  tlie  Law  of  1879)  have  modi- 
fied Arts.  414  and  417  of  the  Code  of  1807  by  providing  that  in  esti- 
mating the  contributory  value  of  the  goods,  freight  paid  in  advance 
and  not  liable  to  be  repaid  is  not  to  be  deducted,  and  that  the  ship 
only  contributes  on  its  value  at  the  port  of  discharge,  i.e.,  if  it  arrives 
damaged  it  contributes  on  its  damag-ed  value,  to  which  the  amount. 


4H0  APPENDIX  E. 

made  good  in  general  average  for  the  sacrifice  of  the  ship's  stores,  &c. 
must  be  added.  If  the  ship  arrives  in  good  condition  after  having  been 
repaired  at  a  port  of  refuge,  the  costs  of  the  repairs  necessarily, 
effected  tliere  must  be  deducted  from  her  vakie  at  the  port  of  discharge. 
The  provisions  relating  to  freight,  which  had  been  altered  in  several 
important  respects  in  the  Law  of  1879,  have  also  remained  unchanged 
in  the  present  Law,  except  as  regards  the  numbering  of  the  articles. 

Before  1879,  distance  freight  was  allowed  if  the  ship  was  condemned 
at  a  port  of  refuge  and  the  goods  were  reshijoped  on  another  vessel. 
According  to  par.  3  of  Art.  142  (Art.  97  in  the  Law  of  1879),  no  freight 
is  due  for  goods  which,  after  the  ship  has  been  wrecked  or  declared 
to  be  innavigable,  do  not  reach  their  destination.  Further,  par.  4 
provides  that  if  the  goods  are  carried  to  their  destination  at  a  lower' 
freight  than  the  original  freight,  tlie  difference  between  the  two 
freights  nmst  be  paid  to  the  captain  (jf  the  original  ship.  Nothing, 
however,  is  due  to  him  if  the  new  freight  is  equal  to  the  original 
freight,  and  if  the  new  freight  exceeds  it,  the  excess  is  to  be  borne 
by  the  shipper. 

Since  the  Law  of  1879,  the  captain  is  in  no  case  authorized  (not 
even  on  short  coasting  voyages)  to  load  cargo  on  deck,  aud  if  deck 
cargo  be  jettisoned,  it  is  not  contributed  for. 

Ill  relation  to  freight,  one  lacuna  remains  which  the  "  Belgian 
Association  for  the  Unification  of  Maritime  Law  "  is  at  this  moment 
striving  to  fill,  viz.,  how  to  deal  with  the  freight  of  damaged  goods 
which  have  been  disposed  of  in  the  course  of  the  voyage,  when  the  ship 
•completes  the  voyag'e  with  the  rest  of  her  cargo. 

The  Legislature  ought,  no  doubt,  in  1879,  to  have  incorporated  the 
York-Antwerp  Rules  in  their  integrity  in  the  Law  enacted  only  a 
short  time  after  these  Rules  came  into  force.  But  although  this 
was  not  thought  advisable,  practice  has  supplemented  the  law.  Thus 
the  Belgian  usages  recognize  as  general  averag-e  damage  caused  to 
the  ship  or  cargo  by  jettison  or  any  other  sacrifice  for  the  connnon 
safety;  damage  done  to  the  engines  and  boilers  in  attempting  to  refloat 
a  steamship;  expenses  incui'red  and  damage  sustained  in  refloating 
a  stranded  vessel;  loss  of  cargo,  ship's  materials  or  stores  used  for 
fuel;  damage  or  loss  of  cargo  inevitably  sustained  in  consequence  of 
its  being  discharged,  warehoiused,  reloaded  or  stowed  at  a  port  of 
refuge;  loss  of  freight  resulting  from  damage  to  or  loss  of  cargo  caused 
by  a  general  average  act. 

The  usages  of  Antwerp  also  agree  with  the  York-Antwerp  Rules 
as  regards  loss  or  damage  caiised  by  cutting  away  wreckage,  and 
as  reg-ards  the  consequences  of  a  voluntar}'  stranding  or  of  carrying 
a  press  of  sail,  all  of  which  (subject  to  the  exceptions  mentioned) 
are  particular  average. 


THE  LAW  OF  BELGIUM.  4(51 

The  York-Antwerp  Rules  aud  the  usag-es  of  Autwerp  differ  iu  tlie 
case  of  exting'uishiug  fire  on  shipboard.  The  former  do  not  allow 
contribution  for  the  damag-e  done  by  water  to  paekag-es  which  have 
been  on  fire;  the  latter,  while  treating  the  damage  by  fire  as  particular 
average,  allow  the  damag-e  done  b}'  water  to  the  same  g-oods  as  general 
averag-e.  The  only  other  difference  between  the  York-Antwerp  Rules 
and  the  Belgian  usages  is  with  i-eg-ard  to  deductions  from  the  cost 
of  repairs,  the  rate  of  which  in  the  Rules  varies  according  to  the 
construction  and  age  of  the  ship  and  the  nature  of  the  materials 
sacrificed,  while  under  the  Antwerp  usages  there  is  a  uniform  deduc- 
tion of  one-third,  except  for  anchors,  which  are  contributed  for  with- 
out deduction,  and  steel  or  copper  wire  hawsers  and  chains,  from  which 
only  15  per  cent,  is  deducted. 

The  existing-  Law,  like  the  Law  of  1879  and  the  Code  of  1807,  requires 
that  the  adjustment  of  averagie  losses  shall  be  made  at  the  ship's 
place  of  discharge  by  experts  called  averag-e  adjusters  (dispacheiirfi), 
appointed  in  Belgian  ports  by  the  President  of  the  Chamber  of  Com- 
merce, and  in  foreig-n  ports  by  the  Belgian  consul.  As,  however, 
the  necessities  of  maritime  trade  cannot  be  reconciled  with  the  slow- 
ness, expense  and  worry  of  judicial  proceedings,  the  custom  has 
grown  up  iu  Belgium  of  having  friendly  adjustments  made  without 
any  judicial  formalities,  a  course  which  is  authorized  by  law,  as 
Art.  14o  provides  that,  "in  default  of  special  agreemeut-s  between 
all  the  parties,"  averages  are  regulated  in  conformity  with  the  pro- 
visions of  the  Code  that  follow. 

The  parties  interested  in  the  ship  and  cargo  agree  to  have  a  friendly 
adjustment  made  (a),  by  signing  an  average  bond,  the  form  of  which 
was  by  general  consent  amended  in  1910,  and  reads  now  as  follows:  — 


{a)  In  The  S.S.  Zora,  2ad  November,  1909,  the  parties  had  taken  this  course,  but 
some  of  them  other  than  tlie  captain  had,  in  signing  the  agreement,  reserved  all  rights 
of  appeal.  The  Court  of  Appeal  of  Brussels  held  that  the  captain  could  not  avail 
himself  of  this  reservation  in  order  to  contend  that  some  of  the  expenses  with  which 
the  average  adjusters  had  charged  him  ought  to  he  contributed  for  as  general  average ; 
and  the  Court  intimated  that  even  if  the  reservation  had  been  made  by  all  the  parties, 
it  would  not  have  the  effe(;t  of  enabling  any  of  them  to  dispute  the  apportionment. 

In  The  S.S.  Genua,  15th  June,  1910,  a  similar  agreement  had  been  made  between 
the  captain  aud  the  charterer,  who  was  also  the  receiver  of  the  cargo,  which  consisted 
of  wood  partly  laden  on  deck.  The  charter-party  incorporated  the  York- Antwerp 
Rules,  but  the  captain  signed  a  bill  of  lading  which  provided  that  the  jettison  of  deck 
cargo  should  be  allowed  as  general  average,  and  pi-oduced  it  to  the  adjusters,  who  in 
accordance  therewith  allowed  such  jettison  as  general  average.  The  Court  of  Appeal 
of  Brussels  held  that  the  captain  could  not,  as  between  the  parties  to  the  charter- 
party,  vary  the  tei-ms  of  the  charter-party  contract  by  the  bill  of  lading,  and  remitted 
the  average  statement  to  the  adjusters  to  alter  it  so  as  to  give  effect  to  the  York- 
Antwerp  Rules. 


462  APPENDIX  E. 

•  Avarie  Commune. 

Entre:  le  capitaiue  commandant  le  navire  d'une  part 

€t  le     consignataire     du  chargement  d'autre   part. 

Attendu  que  le  capitaine  declare 

Vu  I'impossibilite  de  pouvoir  des  a  present  fixer  la  part  que  la 
cargaison  ainsi  que  le  navire  et  le  fret  auraient  a  contribuer  dans 
les  avaries  alleguees  &  afin  d'eviter  des  delais  et  des  frais  judiciaires 
&  pour  avoir  libre  disposition  de  la  cargaison; 

II  a  ete  convenu  ce  jour  entre  parties: 

Que  toutes  les  pieces  relatives  a  cette  affaire  seront  remises  a  , 

Dispaclieurs,  agrees  au  Tribunal  de  Commerce  d'Anvers,  aux  fins  de 
determiner,  de  classer  &  de  repartir  les  avaries  d'apres  la  loi,  les 
conventions  des  parties,  les  us  et  coutumes  sur  la  matiere,  en  les 
dispensant  du  serment  &  des  formalites  judiciaires,  meme  du  depot; 

Qu'apres  le  debarquement,  le  consignataire  remettr  le  plus  tot 
possible  une  declaration  de  la  valeur  des  marchandises  regues  au  prix 
de  la  place,  sous  deduction  du  fret,  des  droits,  des  frais  ordinaires  & 
du  dommage  eventuel; 

Que  revaluation  du  navire  sera  faite  par  experts; 

Que  le  capitaine  se  reserve  le  droit  de  reclamer  une  contribution 
provisoire  dont  I'import  sera  determine  par  lui  de  commun  accord 
avec  les  dispacheurs  ci-dessus  designes; 

Que  les  parties  regleront  a  Anvers  a  premiere  requisition  la  quote- 
part  des  avarie.s  &  depenses  qui  leur  incombera,  etant  entendu  que  la 
mission  de  Mess,  les  Dispaclieurs  est  celle  prevue  aux  art.  163  &  164 
de  la  loi  maritime  &  qu'en  consequence  les  parties  auront  conformement 
a  ces  articles  &  nonobstant  la  presente  convention  le  droit  de  soumettre 
le  reglement  a  justice. 

Ainsi  fait  en  deux  exemplaires,  dont  I'un  remis  au  capitaine  d'une 
part  &  I'autre  pour  toutes  les  parties  d'autre  part,  ce  dernier  restant 
depose  chez  M.  dispacheur. 

Anvers,  le 


Mr.  Van  Peborgh  has  also  supplied  the  editors  with  a  copy  of  the 
form  of  underwriters'  guaranty  for  the  payment  of  general  average, 
now  in  use  in  Belgium.     It  is  as  follows:  — 

(Date) 

S.S. 

de  a 

Le  soussigne,  en  vue  d'eviter  le  versement  en  especes  du  depot  pro- 
visoire d'avarie  commune,  declare  par  le  present  se  porter  fort,  et 
ee  jusqu'a  concurrence  des  sommes  assurees,  vis-a-vis  de  M.M.  , 

Agents  de  I'Armement  du  susdit  steamer,   pour  la  bonne  execution 
par  les  receptionnaires  du  Reglement  General  des  Avaries  a  intervenir 


THE  LAW  OF  BELGIUM. 


463 


a  a  la  suite  des  evenements  survenus  en  cours  du  voyage  (a 

detainer) . 


Receptionnaires  (ou  a  defaut)  Chargeurs. 


Marchandises. 


Signatures  of  the  Insurers  or 
their  Representatives. 


The  principal  articles  of  the  Law  of  the  10th  February,  1908,  which 
relate  to   general  average  and  freight,  are  the  following:  — 

(N.B. — The  numbers  in  brackets  are  those  of  the  corresponding 
articles  in  the  Law  of  1879.) 


TIT  RE  HI. 
CHAPITRE    III.— Des    Avaiues 

ET    DE    LETJR    REGLEMENT. 

Art.  144  (99).  Toutes  depenses 
extraordinaires  faites  pour  le 
navire  et  les  marchandises,  con- 
jointement  ou  separement; 

Tout  dommage  qui  arrive  au 
navire  ou  aux  marchandises,  de- 
puis  leur  chargement  et  depart 
jusqu'a  leur  retour  et  decharge- 
ment. 

Sent  reputes  avaries. 

Art.  145  (100).  A  defaut  de  con-  Art.   14o  (100).    In   default   of 

ventions  speciales  entre  toutes  les  |  special    agreements    between     all 

parties,  les    avaries    sont    reglees  |  the    parties,    averages    are    regu- 

conformement  aux  dispositions  ci-   i  lated  in  conformity  with  the  fol- 

apres.  lowing  provisions. 


TITLE  in. 
CHAPTER  III.— Of  Averages 

AND    THEIR    ADJUSTMENT. 

Art.  144  (99).  All  extraordinary 
expenses  incurred  for  the  ship  and 
the  cargo,  conjointly  or  separately ; 
all  damage  happening  to  the  ship 
or  cargo,  from  the  loading  and 
departiire  until  the  arrival  and  dis- 
charge, are  considered  averages. 


Art.  146  (101).  Les  avaries  sont 
de  deux  classes:  avaries  communes 
et  avaries  particulieres. 


Art.  146  (101).  Averages  are  of 
two  classes:  general  average  and 
particular  average. 


464 


APPENDIX  E. 


Art.  147  (102).  Sont  avaries 
communes:  les  depenses  extraordi- 
naires  faites  efc  les  dommages 
soufferts  volontairement  pour  le 
bien  at  salut  commun  du  navire 
et  des  marchandises. 

Toutes  autres  avaries  sont  par- 
ticulieres . 

Art.  148  (103).  Sont  toutefois 
considerees  comma  avaries  com- 
munes les  depen.ses  de  toute  relache 
effectuee  a  la  suite  de  fortune  de 
mer,  qui  mattrait  le  navire  et  la 
cargaison,  si  la  navigation  etait 
continuee,  en  etat  de  peril  com- 
mun. 

Sont  compris  dans  ces  depenses, 
les  gages  et  la  nourritura  de  Tequi- 
page,  depuis  le  port  de  relache  jus- 
qu'au  moment  oti  le  navire  aura 
eta  remis  en  etat  de  continuer  son 
voyage. 

Si  la  relache  est  motivee  par  des 
avaries  qui  soient  reconnues  pro- 
venir  du  vice  propre  du  navire  on 
d'une  cause  imputable  au  capitaine 
ou  a  I'equipage,  les  depenses  sont 
avaries  particulieres  au  navire. 

Si  la  relache  est  motivee  par  la 
fermentation  spontanee  ou  par 
d'autres  vices  propres  de  la  mar- 
chandise,  toutes  les  depenses  sont 
avaries  particulieres  a  la  marchan- 
dise. 

Art.  149  (104).  Les  avaries 
communes  sont  supportees  par  les 
marchandises,  par  le  navire  et  par 
le  montant  net  du  fret,  au  marc  le 
franc  de  leur  valeur. 

Les  avaries  particulieres  sont 
supportees  et  payees  par  le  pro- 


Art.  147  (102).  Extraordinary 
expenses  incurred,  and  damage 
sustained  voluntarily  for  the 
common  good  and  safety  of  the 
ship  and  cargo,  are  general  aver- 
age. 

All  other  averages  are  par- 
ticular. 

Art.  148  (103).  The  expenses  of 
any  port  of  refuge  made  in  con- 
sequence of  sea  peril  vphich,  if  the 
voyage  had  been  continued,  would 
have  involved  the  ship  and  cargo 
in  a  state  of  common  peril,  are 
always  considered  general  average. 
The  wages  and  provisions  of  the 
crew,  from  the  entry  into  the  port 
of  refuge  until  the  ship  has  been 
placed  in  a  condition  to  continue 
the  voyage,  are  comprised  in  these 
expenses.  If  the  reason  of  putting 
in  is  damage  known  to  arise  from 
the  vice  propre  of  the  ship,  or 
from  a  cause  chargeable  to  the 
master  or  the  crew,  the  expenses 
are  particular  average  on  the  ship . 
But  if  required  because  of  spon- 
taneous fermentation,  or  other  vice 
propre  of  the  goods,  all  the  ex- 
penses are  particular  average  on 
the  cargo. 


Art.  149  (104).  General  average 
is  borne  by  the  cargo,  the  ship,  and 
the  net  amount  of  the  freight  in 
proportion  to  their  values. 

Particular  average  is  borne  and 
paid  by  the  owner  of  the  property 


THE  LAW  OF  BELGIUM. 


466 


prietaire  de  la  chose  qui  a  essuye 
le  dommage  ou  occasionne  la  perte. 

Art.  150  (105).  Le  fret  nonpaye 
ou  paje  d'avance  et  restituable  ne 
contribue  que  pour  la  moitie  de 
son  montant  brut. 

Art.  151  (106).  Les  munitions 
de  guerre  et  de  bouche,  les  hardes 
et  salaires  des  gens  de  I'equipage 
et  les  bagages  des  passagers  ne 
contribuent  pas  a  I'avarie  com- 
mune; leur  valeur  sera  payee  par 
contribution  sur  tous  les  autres 
effets. 

Art.  152  (107).  Toute  marchan- 
dise  preservee  contribue  pour  sa 
valeur  nette  au  lieu  du  decharge- 
ment  ou  son  produit  net,  deduc- 
tion faite  du  fret  a  payer.  Le  fret 
pave  d'avance  et  uon  restituable 
n'est  pas  deduit. 

Les  marchandises  jetees  ou  sac- 
rifiees  sont  remboursees  pour  leur 
valeur,  fret  compris,  a  charge  de 
payer  le  fret.  Elles  contribuent 
pour  leur  valeur,  fret  deduit,  de 
la  meme  maniere  que  les  marchan- 
dises preservees. 

Art.  153  (108).  La  qualite  des 
marchandises  est  constatee  par  la 
production  des  connaissemenfcs  et 
des  factures,  s'il  y  en  a. 

Si  la  qualite  des  marchandises  a 
ete  deguisee  par  le  connaissement, 
et  qu'elles  se  trouvent  d'une  plus 
grande  valeur,  elles  contribuent 
sur  le  pied  de  leur  estimation,  si 
elles  sont  sauvees. 

L. 


which  has  sustained  the  damage 
or  occasioned  the  loss. 

Art.  150  (105).  Freight  unpaid, 
or  paid  in  advance  and  liable  to 
be  repaid,  contributes  only  upon 
one-half  of  its  gross  amount. 

Art.  151  (106).  Munitions  of 
war,  victuals,  the  effects  and  wages 
of  the  crew  and  the  baggage  of 
the  passengers,  do  not  contribute 
to  general  average;  their  value  is 
repaid  b}^  contribution  from  all 
the  other  effects. 


Art.  152  (107).  All  goods  pre- 
served contribute  upon  their  net 
value  at  the  place  of  discharge  or 
their  net  proceeds,  after  deducting 
the  freight  to  be  paid.  Freight 
prepaid  and  not  returnable  is  not 
deducted. 

Goods  jettisoned  or  otherwise 
sacrificed  are  contributed  for  upon 
their  value,  including  freight,  and 
are  liable  to  pay  freight.  They 
contribute  upon  their  value,  less 
the  freight,  in  the  same  manner 
as  goods  saved. 

Art.  153  (108).  The  quality  of 
the  goods  is  evidenced  by  the  pro- 
duction of  the  bills  of  lading  and 
invoices,  if  there  are  any.  If  the 
quality  of  the  goods  has  been 
disguised  in  the  bill  of  lading,  and 
they  possess  a  greater  value,  they 
contribute,  if  they  are  saved,  ac- 
cording to  their  real  worth.  They 
are    paid     for    according    to    the 

H  H 


466 


APPENDIX  E. 


Elles  sont  payees  d'apres  la 
qualite  desig-Bee  par  le  connaisse- 
ment,  si  elles  sont  perdues. 

Si  les  marehandises  declarees 
sont  d'une  qualite  inf  erieure  a  celle 
qui  est  indiquee  par  le  connaisse- 
ment,  elles  contribuent  d'apres  la 
qualite  indiquee  par  le  connaisse- 
ment,  si  elles  sont  sauvees. 

Elles  sont  payees  sur  le  pied  de 
leur  valeur,  si  elles  sont  jetees  ou 
endommagees . 

Art.  154  (109).  Les  effets  dont 
il  n'y  a  pas  de  connaissement  ou 
declaration  du  capitaine  ne  sont 
pas  payes  s'ils  sont  jetes;  ils  con- 
tribuent s'ils  sont  sauves. 

Les  effets  charges  sur  le  tillac 
du  navire  contribuent  s'ils  sont 
sauves.  S'ils  sont  jetes  ou  endom- 
mages  par  le  jet,  le  proprietaire 
n'est  point  admis  a  former  une 
demande  en  contribution;  il  ne 
peut  exercer  son  reeours  que  contre 
le  capitaine. 

Art.  155  (110).  Le  navire  con- 
tribue  par  sa  valeur  au  lieu  du 
dechargement. 

Art.  156  (111).  Si  le  jet  ne 
sauve  pas  le  navire,  il  n'y  a  lieu  a 
aucune  contribution. 

Les  marehandises  sauvees  ne 
sont  point  tenues  du  payement  ni 
du  dedommagement  de  celles  qui 
ont  ete  jetees  ou  endommagees. 

Art.  157  (112j.  Si  le  jet  sauve 
le  navire,  et  si  le  navire,  en  con- 
tinuant sa  route,  vient  a  se  perdre, 
les  effets  sauves  contribuent  au  jet 
sur  le  pied  de  leur  valeur,  en  I'etat 


value  designated    by  the    bill    of 
lading,  if  they  are  lost. 

If  the  goods  are  of  a  quality  in- 
ferior to  that  indicated  in  the  bill 
of  lading,  they  contribute  accord- 
ing to  the  value  indicated  in  the 
bill  of  lading,  if  they  are  saved. 
They  are  paid  for  according  to 
their  value  if  they  are  jettisoned 
or  damaged. 


Art.  154  (109).  Effects  for  which 
there  is  no  bill  of  lading  or  decla- 
ration of  the  master,  are  not  paid 
for  if  they  are  jettisoned;  they 
contribute  if  they  are  saved. 

Effects  loaded  upon  the  deck  of 
the  ship  contribute  if  they  are 
saved.  If  they  are  jettisoned  or 
damaged  by  a  jettison,  the  owner 
is  not  allowed  to  make  a  claim  for 
contribution;  his  only  remedy  is 
against  the  master. 


Art.  155  (110).  The  ship  conti-i- 
butes  upon  her  value  at  the  place 
of  discharge . 

Art.  156  (lllj.  If  the  jettison 
does  not  save  the  ship,  there  is  no 
ground  for  any  contribution.  The 
goods  saved  are  not  bound  for  the 
payment  or  indemnity  of  those 
which  have  been  jettisoned  or 
damaged. 

Art.  157  (112).  If  the  jettison 
saves  the  ship,  and  if  the  ship,  in 
continuing  the  voyage,  is  lost,  the 
effects  saved  contribute  to  the 
jettison    in    proportion     to     their 


THE  LAW  OF  BELGIUM. 


467 


ou  ils  se  trouvent,  deduction  faite 
des  frais  de  sauvetage. 


Art.  158  (113).  Les  effets  jetes 
ne  contribuent,  en  aucun  eas,  au 
payement  des  dommages  arrives 
depuis  le  jet  aux  marchandises 
sauvees. 

Les  marchandises  ne  contribuent 
point  au  payement  du  navire  perdu 
ou  reduit  a  I'etat  d'innavigabilite. 

Art.  159  (114).  Dans  tons  les 
t3as  ci-dessus  exprimes,  ie  capitaine 
et  I'equipage  sont  privilegies  sur 
les  marchandises  ou  le  prix  en 
provenant  pour  le  montant  de  la 
contribution. 

Ils  ne  peuvent  toutefois  retenir 
les  marchandises,  si  le  destinataire 
donne  caution  pour  le  payement  de 
la  contribution. 

Art.  160  (115).  Si,  depuis  la 
repartition,  les  eSets  jetes  sont 
recouvres  par  les  proprietaires,  ils 
sont  tenus  de  rapporter  au  capi- 
taine et  aux  interesses  ce  qu'ils 
ont  regu  dans  la  contribution,  de- 
duction faite  des  dommages  causes 
par  le  jet  et  des  frais  de  recouvre- 
ment. 

Art.  161  (116).  Le  capitaine  est 
tenu  de  rediger  par  ecrit  le  proces- 
verbal  du  jet  et  des  autres  sacri- 
fices faits,  au.ssit6t  qu'il  en  a  les 
moyens.  Le  proces- verbal  enonce 
les  motifs  qui  ont  determine  le 
sacrifice,  les  choses  sacrifices,  aban- 
donnees,  jetees  ou  endommagees. 
II  est  signe  du  capitaine  et  des 
principaux      de      I'equipage,      ou 

H 


value,  in  the  state  in  which  they 
are  found,  deduction  being  made 
of  the  charges  of  saving  them. 

Art.  158  (113).  Effects  jetti- 
soned do  not  contribute  in  any  case 
to  the  payment  of  damage  hap- 
pening after  the  jettison  to  the 
goods  saved. 

Goods  do  not  contribute  to  the 
payment  of  the  ship  lost  or  ren- 
dered innavigable. 

Art.  159  (114).  In  all  the  cases 
above-mentioned,  the  master  and 
crew  have  a  lien  on  the  goods  or 
their  proceeds  for  the  amount  of 
their  contribution. 

They  may  not,  however,  retain 
the  goods,  if  the  consignee  gives 
security  for  the  payment  of  the 
contribution. 

Art.  160  (115).  If,  after  the  ap- 
portionment, the  effects  jettisoned 
are  recovered  by  their  owners,  they 
are  obliged  to  refund  to  the  cap- 
tain, and  others  interested,  what 
they  have  received  in  contribution, 
less  the  damage  caused  by  the 
jettison,  and  the  costs  of  salvage. 


Art.  161  (116).  The  captain  is 
bound  to  draw  up  in  writing  a 
formal  statement  of  the  jettison 
and  other  sacrifices  made  as  soon 
as  possible.  This  account  must 
detail  the  reasons  for  the  sacrifice 
and  what  goods  were  sacrificed, 
abandoned,  jettisoned,  or  dam- 
aged. It  is  signed  by  the  captain 
and    principal     members    of     rhe 

h2 


468 


APPENDIX  E. 


enonce  les  motifs  de  leur  refus  de 
signer.  II  est  transcrit  sur  le 
regis  tre. 

Art.  162  (117).  Au  premier  port 
ou  le  navire  abordera,  le  capitaine 
est  tenu,  dans  les  vingt-quatre 
heures  de  son  arrivee,  d'affirmer 
les  faits  contenus  dans  le  proces- 
verbal. 

Art.  163  (118).  L'etat  des  pertes 
et  dommages  est  fait  dans  le  lieu 
du  dechargement  du  navire,  a  la 
diligence  du  capitaine  et  par 
experts. 

Les  experts  sont  nommes  par  le 
Tribunal  de  Commerce,  si  le  de- 
chargement se  fait  dans  un  port 
beige. 

Dans  les  lieux  ou  il  n'y  a  pas  de 
Tribunal  de  Commerce,  les  experts 
sont  nommes  par  le  juge  de  paix. 

lis  sont  nommes  par  le  consul  de 
Belgique,  et,  a  son  defaut,  par  le 
magistrat  du  lieu,  si  la  deeharge 
se  fait  dans  un  port  etranger. 

Les  experts  pretent  serment 
avant  d'operer. 

Art.  164  (119j.  Les  experts 
nommes  en  vertu  de  I'article  pre- 
cedent font  la  repartition  des 
pertes  et  dommages. 

La  repartition  est  rendu  execu- 
toire  par  I'homologation  du  tri- 
bunal. 

Dans  les  ports  etrangers,  la  re- 
partition est  rendue  executoire  par 
le  consul  de  Belgique,  ou,  a  son 
defaut,  par  tout  tribunal  compe- 
tent sur  les  lieux. 


crew,  or  states  the  motive  of  their 
refusal  to  sign.  It  is  copied  into 
the  ship's  log. 

Art.  162  (117).  At  the  first  port 
into  which  the  ship  enters,  the  cap- 
tain is  bound  within  twenty-four 
hours  of  his  arrival  to  affirm  the 
facts  stated  in  the  formal  state- 
ment. 

Art.  163  (118).  The  account  of 
the  losses  and  damages  is  made 
in  the  place  of  the  ship's  dis- 
charge, at  the  instance  of  the 
captain  and  by  experts. 

The  experts  are  named  by  the 
Tribvmal  of  Commerce  if  the  dis- 
charge is  made  in  a  Belgian  port. 
In  places  where  there  is  no  Tri- 
bunal of  Commerce,  the  experts 
are  nominated  by  the  justice  of 
the  peace.  They  are  named  by 
the  Belgian  consul,  or,  in  his  ab- 
sence, by  the  magistrate  of  the 
place,  if  the  discharge  is  made  in 
a  foreign  port.  The  experts  are 
sworn  before  they  commence  their 
work . 

Art.  164  (119).  The  experts 
nominated  under  the  provisions  of 
the  preceding  Article  make  the 
apportionment  of  the  losses  and 
damages.  The  apportionment  is 
rendered  executory  by  official  con- 
firmation by  the  Tribunal. 

In  foreign  ports  the  apportion- 
ment is  rendered  executory  by  the 
Belgian  consul,  or  failing  him  by 
some  competent  tribunal  of  the 
place. 


THE  LAW  OF  BELGIUM. 


469 


TITEE  I. 

CHAPITEE  III.   Sect.  II.— Des 
Navires  et  autres  batiments 

DE  MeR. 

Art.  34  (149).  En  cas  de  perte 
ou  d'innavigabilite  du  navire,  les 
droits  du  creancier  s'exercent  sur 
les  choses  sauvees  ou  sur  leur  pro- 
duit,  alors  meme  que  la  ereance  ne 
serait  pas  encore  exigible. 

Dans  le  cas  de  regiement  d'ava- 
ries  concernant  le  navire,  le  cre- 
ancier liypothecaire  pent  inter- 
venir  pour  la  conservation  de  ses 
droits;  il  ne  pent  les  exereer  que 
dans  le  cas  ou  I'indemnite,  en  tout 
ou  en  partie,  n'aurait  pas  ete  ou 
ne  serait  pas  employee  a  la  re- 
paration du  navire. 

TIT  RE  II. 
CHAPITRE      I.— Des     proprie- 

TAIRES     DE      NaVIRES     ET     DES 

Equipages. 

Art.  46  (7).  Tout  proprietaire 
de  navire  est  civilement  respon- 
sable  des  faits  du  capitaine  et  tenu 
des  eng-ag-ements  contractes  par  ce 
dernier  dans  I'exercice  de  ses  fonc- 
tions ;  il  est  civilement  responsable 
des  faits  de  I'equipage  et  des  pro- 
poses qui  en  font  Toffice  dans 
I'exercice  de  leurs  fonctions  re- 
spectives . 

II  pent,  dans  tons  les  cas, 
s'affranchir  de  ces  obligations  et 
des  frais  et  indemnites  dus  a  raison 
d'assistance  ou  de  sauvetage  par 
I'abandon  du  navire  et  du  fret. 


TITLE  I. 

CHAPTER  III.  Sect.  II.— Of 
Ships  and  other  Sea-going 
Craft. 


34   (149).    In  case  of  the 
or     innavig-ability     of     the 


Art 
loss 

ship,  the  rights  of  the  creditor 
are  exercised  on  the  articles  which 
have  been  saved  or  their  proceeds, 
even  if  the  mortgage  debt  cannot 
yet  be  enforced. 

When  there  is  an  adjustment  of 
average  in  which  the  ship  is  in- 
terested, the  mortgage  creditor  can 
intervene  for  the  protection  of  his 
rights;  he  cannot,  however,  en- 
force them  unless  the  indemnity 
(either  in  whole  or  in  part)  has 
not  been,  or  will  not  be,  used  for 
the  repair  of  the  ship. 

TITLE  II. 

CHAPTER  I.— Of  Shipowners 
and  Ships'  Crews. 

Art.  46  (7).  Every  shipowner  is 
civilly  responsible  for  the  acts  of 
the  captain  and  bound  by  his  con- 
tracts made  in  the  fulfilment  of 
his  duties;  he  is  civilly  respon- 
sible for  the  acts  of  the  crew,  and 
of  the  substitutes  who  do  their 
work,  in  the  fulfilment  of  their  re- 
spective duties. 

He  can,  in  every  case,  free  him- 
self from  such  responsibility  and 
from  liability  for  salvage  charges 
by  abandoning  the  ship  and 
freight. 


470 


APPENDIX  E. 


Art.  47.  Le  proprietaire  peut 
remplacer  rabaudon  du  navire  par 
le  paiement  de  sa  valeiu'  a  la  fin 
du  voyage  ou  d'une  somme  corres- 
pondant,  poiir  chaque  voyage,  a 
200  francs  par  tonne  de  jauge  brut 
de  son  batiment. 

II  ne  peut  user  de  cette  derniere 
faculte  pour  se  liberer  des  frais  et 
indemnites  dus  a  raison  d'assist- 
ance  et  de  sauvetage. 

Les  dispositions  qui  precedent 
ne  prejudicient  pas  au  droit  des 
creanciers  de  saisir  conservatoire - 
ment  le  navire  en  cours  de  voyage 
ou  d'exiger  caution. 

Art.  48.  Le  voyage  est  repute 
fijii  apres  debarquement  complet 
des  marchandises  et  des  passagers 
se  trouvant  a  bord  au  moment  ou 
I'obligation  est  nee. 

Art.  49.  L'abandon  ne  comprend 
pas  le  recours  du  proprietaire 
centre  I'assureur. 

Art.  50.  Le  proprietaire  esttenu 
de  suppleer  en  especes  les  sommes 
qui,  par  suite  de  privilege  ou 
d'hypotheque,  seraient  preJevees 
sur  la  valeur  du  navire  ou  du  fret 
par  des  creances  ayant  centre  le 
proprietaire  une  action  personnelle 
dont  il  ne  pourrait  saffranchir par 
abandon. 

Art.  5] .  La  faculte  de  se  liberer 
par  abandon  ne  s'etend  pas  aux 
obligations  derivant  de  fautes  per- 
sonnelles  du  proprietaire,  des  con- 
trats  passes  par  lui  ou  de  ceux 
qu'il  a  autorises  ou  ratifies.  Elle 
appartient  a  celui  qui  est  a  la  fois 


Art.  47.  The  shipowner  can  sub- 
stitute for  the  abandonment  of  the 
ship  the  payment  of  its  value  at 
the  end  of  the  voyage  or  of  a  sum 
corresponding,  for  each  voyage,  to 
200  francs  per  ton  of  her  gross 
tonnage. 

He  cannot  avail  himself  of  the 
last-named  limitation  to  free  him- 
self from  salvage  expenses. 

The  preceding  provisions  do  not 
affect  the  right  of  creditors  to 
arrest  the  ship  in  the  course  of  the 
voyage  and  to  require  bail. 


Art.  48.  The  voyage  is  deemed 
to  be  finished  when  the  goods  and 
passengers  who  were  on  board 
when  the  liability  arose  have  all 
been  landed. 

Art.  49.  Abandonment  does  not 
include  the  claims  of  the  ship- 
owner against  the  insurer. 

Art.  50.  The  shipowner  is  bound 
to  provide  in  cash  the  sums  which 
by  way  of  lien  or  mortgage  have 
been  secured  on  the  ship  and 
freight  in  respect  of  charges  which 
give  a  personal  right  of  action 
against  the  shipowner,  from  which 
he  cannot  release  himself  by  aban- 
donment. 

Art.  51.  The  right  of  the  ship- 
owner to  free  himself  from  lia- 
bility by  abandonment  does  not 
extend  to  liabilities  arising  from 
his  own  fault,  or  from  contracts 
made  by  himself,  or  which  he  has 
authorized,  or  ratified.     It  can  b© 


THE  LAW  OF  BELGIUM. 


471 


capitaine  et  proprietaire  du  navire 
pour  le  dommage  cause  par  lui 
dans  la  conduite  du  navire,  le  cas 
de  dol  excepte. 

Art.  52.  En  cas  de  naufrage 
d'un  navire  dans  les  eaux  terri- 
toriales,  bassins,  ports  ou  rades 
comme  aussi  en  cas  d'avaries 
causees  par  an  navire  aux 
ouvrages  d'un  port,  le  proprie- 
taire pent  se  liberer  par  I'abandon, 
meme  envers  I'Etat  et  les  adminis- 
trations publiques,  de  toute  de- 
pense  d  extraction  et  de  repara- 
tion, ainsi  que  de  tons  dommages- 
interets . 

Art.  53.  L'afireteur  et  I'armateur 
tenus  de  la  responsabilite  du  pro- 
prietaire du  navire  peuvent  user 
de  la  faculte  d'abandon  dans  les 
memes  conditions  que  celui-ci. 


CHAPITRE  II.   Sect.  I. 

Art.  58  (12).  Tout  capitaine, 
maitre  ou  patron,  charge  de  la 
conduite  d'un  navire  ou  autre 
batiment,  est  garant  de  ses  f antes, 
meme  legeres,  dans  I'exercice  de 
ses  fonctions. 

Art.  59  (13).  II  est  responsable 
des  marehandises  dont  il  se  charge . 
n  en  fournit  une  reconnaissance; 
cette  reconnaissance  se  nomme 
connaissement. 

Art.  66  (20).  Le  capitaine  re- 
pond  egalement  de  tout  le  dom- 


exercised  by  one  who  is  both  the 
captain  and  owner  of  the  ship,  in 
respect  of  injixry  caused  by  him 
in  the  management  of  the  ship, 
cases  of  fraud  excepted. 

Art.  52.  In  case  of  the  ship  being- 
wrecked  in  territorial  waters, 
basins,  ports,  or  roadsteads,  or  of 
damage  being  caused  by  a  ship  to 
harbour  works,  the  shipowner  can 
free  himself  by  abandonment,  even 
as  against  the  State  and  public 
authorities,  from  liability  for  the 
cost  of  raising  the  ship  and  of  re- 
pairs, or  for  damages. 


Art.  53.  The  charterer  or  ship's 
husband  who  has  the  liability  of 
a  shipowner  can  exercise  the  right 
of  abandonment  under  the  same 
conditions  as  the  latter. 


CHAPTER  II.     Sect.  I. 

Art.  58  (12).  Every  captain, 
master  or  skipper  who  is  entrusted 
with  the  command  of  a  ship  or 
other  vessel  is  responsible  for  his 
faults,  though  trifling,  committed 
in  the  exercise  of  his  employment. 

Art.  59  (13).  He  is  responsible 
for  the  goods  which  he  takes  on 
board.  He  gives  a  receipt  for 
(hem  which  is  called  a  bill  of 
lading. 

Art.  66  (20).  The  captain  is  also 
responsible    for    all    damage  sus- 


mage  qui  pent  arriver  aux  mar-  \  tained  by  goods  which  ho  carries 


472 


APPENDIX  E. 


chandises  qu'il  uurait  chargees 
sur  le  tillac  de  son  vaisseau  sans 
le  consentement  par  ecrit  <lu 
charge  ur. 

Est  assimilee  au  tillac  toute  con- 
struction ne  faisant  pas  corps  avec 
la  membrure  du  vaisseau. 

Art.  67  (21).  La  responsabilite 
du  capitaine  ne  cesse  que  par  la 
preuve  d'obstacle  de  force  majeure. 

Art.  78  (32).  Le  capitaine  est 
tenu,  dans  les  24  lieures  de  son 
arrivee,  de  faire  riser  son  registre 
et  de  faire  son  rapport. 

Le  raj)port  doit  enoncer  le  lieu 
et  le  temps  de  son  depart,  la  route 
qu'il  a  tenue,  les  hasards  qu'il  a 
courus,  les  desordres  arrives  dans 
le  navire  et  tovites  les  circon- 
stances  remarquables  de  son  voy- 
age. 

Art.  90  (45  ) .  En  cas  de  nauf rage 
ou  de  relache  forcee,  tout  porteur 
d'un  connaissement,  alors  meme 
qu'il  serait  a  personne  denommee, 
pent  exercer  tons  les  droits  du 
chargeur,  se  faire  delivrer  la  mar- 
chandiso  par  le  capitaine  et  en 
toucher  le  produit,  a  la  charge  de 
fournir  caution  et  en  se  faisant 
autori-ser,  en  Belgique  par  le  Tri- 
bunal de  Commerce,  en  pays 
etranger  par  le  Consul  de  Belgique 
ou  le  niagistrat  du  lieu,  qui  pre- 
scrira  telles  mesui'es  conserva- 
toires des  droits  des  tiers  qu'il 
jugera  convenables. 


on  the  deck  of  his  vessel  without 
the  written  consent  of  the  shipper. 


Every  structure  which  is  not 
built  in  with  the  frame  of  the  ship 
is  deemed  to  be  part  of  the  deck. 

Art.  67  (^21).  The  liability  of  the 
captain  is  only  ended  by  proof  of 
the  intervention  of  vis  major. 

Art.  78  (32).  The  captain  is 
bound  within  tAventy-four  hours  of 
his  arrival  to  have  his  log  exa- 
mined, and  to  make  his  report. 

The  report  must  specify  the  port 
and  time  of  departure,  his  route, 
the  perils  which  he  has  encoun- 
tered, the  disturbances  which  have 
taken  place  on  the  ship  and  all 
the  remarkable  events  of  the 
voyage . 

Art.  90  (45).  In  case  of  ship- 
wreck or  of  making  a  port  of  dis- 
tress, every  holder  of  a  bill  of 
lading,  even  when  it  is  made  out 
to  a  specified  person,  can  exercise 
all  the  rights  of  the  shipper,  have 
the  o-oods  delivered  to  him  bv  the 
captain  and  receive  the  proceeds 
thereof,  on  condition  of  giving 
bail  and  of  obtaining  the  autho- 
rization, in  Belgiu.m  of  the  Tri- 
bunal of  Commerce,  or  in  a  foreign 
countr}^  of  the  Belgian  consul  or 
the  local  magistrate,  who  will  im- 
pose such  terms  as  he  considers  ad- 
visable for  the  protection  of  the 
rights  of  third  parties. 


THE  LAW  OF  BELGIUM. 


473 


TIT  RE  in. 

CHAPITRE  II.  Sect.  II.— De  la 
Chakte-partie    et    du    Con- 

TRAT  DE  LoUAGE   MARITIME. 

Art.  122  (77).  Le  chargeur  ne 
peut  al)andoniier  pour  le  fret  les 
marchandises  diminuees  de  prix 
ou  deteriorees  par  leur  vice  prop  re 
ou  par  cas  fortuit. 

Si  toutefois  des  futailles  conte- 
nant  vin,  huile,  iniel  et  autres  li- 
quides,  ont  tellement  coule  qu'elles 
soient  vides  ou  presque  yides,  les- 
dites  futailles  pourront  etre  aban- 
donnees  pour  le  fret. 

Art.  124  (79).  Le  capitaine  ne 
peut  retenir  les  mai'chandises  dans 
son  navire  faute  de  payement  de 
son  fret. 

II  peut,  dans  le  temps  de  la  de- 
charg-e,  deniander  le  depot  en 
mains  tierces  jusqu'au  payement 
de  son  fret. 

Art.  125  (80).  Le  capitaine  est 
prefere,  pour  son  fret,  et  le  rem- 
boursement  des  avaries,  s'il  y  a 
lieu,  sur  les  marchandises  de  son 
chargement,  pendant  quinzaine 
apres  leur  delivrance,  si  olles 
n'ont  passo  en  mains  tierces. 

Art.  130  (85).  Si  le  vaisseau  est 
arretc  par  une  force  majeure  dans 
le  cours  de  son  yoyage,  il  n'est  du 
aucun  fret  pour  le  temps  de  sa 
detention,  si  le  navire  est  affrete 
pour  un  prix  fixe  par  periode  de 
temps,  ni  augmentation  de  fret, 
s'il  est  loue  au  voyage. 

La  nourriture  et   les   loyers  de 


TITLE  111. 

CHAPTER  III.  Sect.  II.— Of 
Charter-parties  and  Con- 
tracts OF  Hire  of  Ships. 

Art.  122  (77).  The  freighter 
cannot  abandon  for  freight  goods 
diminished  in  price  or  deteriorated 
by  their  vice  pro  pre  or  by  acci- 
dent. 

If,  however,  casks  containing 
wine,  oil,  honey,  or  other  liquids, 
have  leaked  to  such  an  extent  as 
to  be  empty,  or  nearly  empty, 
such  casks  may  be  abandoned  for 
freight. 

Art.  124  (79).  The  captain  may 
not  retain  the  goods  on  board  his 
ship  in  default  of  payment  of  his 
freight. 

He  may,  at  the  discharge,  in- 
sist upon  their  deposit  with  a  third 
party  until  the  payment  of  his 
freight. 

Art.  125  (80).  The  captain  has  a 
preferential  claim  for  his  freight, 
and  for  reimbursement  of  average 
if  there  is  occasion,  on  the  goods 
of  the  cargo  for  fifteen  days  after 
delivery  if  they  have  not  passed 
into  third  hands. 

Art.  130  (85).  If  the  ship  is 
stopped  in  the  course  of  her  voyage 
by  a  vis  major,  no  freight  is  due 
for  the  period  of  her  detention  if 
she  is  freighted  at  a  fixed  price 
by  time,  nor  any  increase  of 
freight  if  she  is  freighted  by  the 
voyage. 

The   board   and   Avag-es    of    the 


474 


APPENDIX  E. 


Tequipage  pendant  la  detention  du  \  crew  during  the  detention  of  the- 
navire  sont  reputes  avaries.  \  ship  are  accounted  average. 


Art.  134  (89).  Le  chargeur  qui 
retire  ses  marchandises  pendant  le 
voyage  est  tenu  de  payer  le  fret 
en  entier  et  tous  les  frais  de  de- 
placement  occasionnes  par  le  de- 
chargement;  si  les  marchandises 
sont  retirees  pour  cause  des  faits 
ou  des  fautes  du  capitaine,  celui-ci 
est  responsable  de  tous  les  frais. 


Art.  138  (93).  Le  fret  est  du 
pour  les  marchandises  que  le  capi- 
taine a  ete  contraint  de  vendre 
pour  subvenir  aux  victuailles, 
radoub  et  autres  necessites  pres- 
santes  du  navire,  en  tenant  par 
lui  compte  de  leur  valeur,  au  prix 
que  le  reste,  ou  autre  pareille  mar- 
chandise  de  meme  qualite,  .*era 
vendu  au  lieu  de  la  decharge,  si 
le  navire  arrive  a  bon  port. 

Si  le  navire  se  perd,  le  capitaine 
tiendra  compte  des  marchandises 
sur  le  pied  qu'il  les  aura  vendues, 
en  retenant  egalement  le  fret  porte 
aux  connaissements,  sauf  dans  ces 
deux  cas,  le  droit  reserve  aux  pro- 
prietaires  du  navire  par  le  §  2  de 
I'article  46. 

Art.  139  (94).  Si  le  capitaine 
est  contraint  de  faire  radouber  le 
navire  pendant  le  voyage,  I'affre- 
teur  est  tenu  d'attendre  ou  de 
payer  le  fret  en  entier. 

Dans  le  cas  ou  le  navire  ne  pour- 
rait  etre  radoube,  le  capitaine  est 
tenu  d'en  louer  un  autre. 

Si  le  capitaine  n'a  pu  louer  un 


Art.  134  (89).  The  shipper  who 
withdraws  his  goods  during  the 
voyage  is  bound  to  pay  the  full 
freight  and  all  expenses  of  the 
displacement  (of  other  goods;  occa- 
sioned by  the  discharge;  if  the 
goods  are  withdrawn  owing  to  the 
acts  or  faults  of  the  captain,  the 
latter  is  responsible  for  all  the 
expenses. 

Art.  138  (93).  Freight  is  due 
for  goods  which  the  captain  has 
been  obliged  to  sell  in  order  to 
pay  for  provisions,  repairs,  and 
other  pressing  necessities  of  the 
ship,  he  accounting  for  their  value 
at  the  price  which  the  rest  or  other 
similar  goods  of  the  same  quality 
will  sell  for  at  the  place  of  dis- 
charge, if  the  ship  arrives  there. 

If  the  ship  is  lost,  the  captain 
shall  account  for  the  goods  accord- 
ing to  the  sum  he  sold  them  for, 
he  retaining  also  the  freight 
named  in  the  bills  of  lading,  sav- 
ing in  both  cases  the  right  reserved 
to  shipowners  by  §  2  of  Art.  46. 


Art.  139  (94).  If  the  captain  is 
obliged  to  repair  the  ship  during 
the  voyage,  the  freighter  is  bound 
to  wait  or  to  pay  the  freight  in 
full. 

In  case  the  ship  cannot  be  re- 
paired, the  captain  is  bound  to 
hire  another. 

If  the  captain  has  not  been  able 


THE  LAW  OF  BELGIUM. 


475 


autre  navire,  le  fret  est  regie  ainsi 
qu'il  en  est  dit  en  I'art.  142. 

Art.  141  (96).  Le  capitaine  est 
paye  du  fret  des  marchandises 
jetees  a  la  mer  pour  le  salut  com- 
mun,  a  la  charge  de  contribution. 

Art.  142  (97).  II  nest  duaucun 
fret  pour  les  marchandises  perdues 
par  naufrage  ou  echouement, 
pillees  par  des  pirates  ou  prises 
par  les  ennemis. 

Le  capitaine  est  tenu  de  restituer 
le  fret  qui  lui  aura  ete  avance,  s'il 
n'y  a  convention  contraire. 

II  n'est  du  aucun  fret  pour  les 
marchandises  qui,  apres  naufrage 
ou  declaration  d'innavigabilite  du 
navire,  ne  seront  pas  parvenues  a 
destination. 

Si  les  marchandises  parviennent 
a  destination  a  un  fret  moindre  que 
celui  qui  avait  ete  convenu  avec  le 
capitaine  du  navire  naufrage  on 
declare  innavigable,  la  difference 
en  moins  entre  les  deux  frets  doit 
etre  payee  a  ce  capitaine.  Mais  il 
ne  lui  est  rien  du  si  le  nouveau  fret 
est  egal  a  celui  qui  avait  ete  con- 
venu avec  lui ;  et,  si  le  nouveau  fret 
est  superieur,  la  difference  en  plus 
est  supportee  par  le  chargeur. 

Art.  143  (98).  Le  capitaine  qui 
a  concouru  au  sauvetage  ou  au 
rachat  des  marchandises  non  par- 
venues  a  destination  a  droit  a  une 
indemnite,  qui,  en  cas  de  contes- 
tation, est  reglee  par  les  tribunaux. 


to  hire  another  ship,  the  freight 
is  regulated  according  to  Art.  142. 

Art.  141  (96).  The  captain  is 
paid  the  freight  on  goods  jetti- 
soned for  the  common  safety,  and 
it  is  contributed  for  in  general 
average. 

Art.  142  (97).  No  freight  is  due 
for  goods  lost  by  shipwreck  or 
stranding,  pillaged  by  pirates,  or 
taken  by  the  enemy. 

The  captain  is  bound  to  refund 
freight  that  has  been  advanced, 
unless  there  is  a  stipulation  to  the 
contrary. 

No  freight  is  due  for  goods 
which,  after  shipwreck  or  a  decla- 
ration of  the  ship's  innavigability, 
have  not  reached  their  destina- 
tion. 

If  the  goods  reach  their  destina- 
tion at  a  freight  less  than  that 
agreed  upon  with  the  captain  of 
the  ship  which  is  wrecked  or  de- 
clared innavigable,  the  difference 
between  the  two  freights  must  be 
paid  to  the  said  captain.  But 
nothing  is  due  to  him  if  the  new 
freight  is  of  equal  amount  to  the 
one  he  agreed  for  himself;  and  if 
the  new  freight  is  higher,  the  ex- 
cess is  to  be  borne  by  the  shipper. 

Art.  143  (98).  The  captain  who 
has  co-operated  in  the  salvage  or 
ransom  of  goods  which  do  not 
reach  their  destination,  can  claim 
compensation,  to  be  adjusted  in 
court,  in  case  of  dispute. 


476 


APPENDIX  E. 


TITRE  y. 

Du  CONTRAT  A  LA  GROSSE. 

Art.  188  (165).  En  cas  de  nau- 
frage  le  paiement  des  sommes  em- 
pruntQes  a  la  grosse  est  reduit  a 
la  valeiu'  des  choses  sauvees  et  af- 
fectees  au  contrat,  deduction  faite 
des  frais  de  sauvetage. 


Art.  189  (166).  Eu  cas  de  jet 
de  la  chose  affectee  a  I'emprunt, 
la  somme  payee  par  contribution 
est  affectee  par  privilege  aux  droits 
du  preteur  a  la  grosse. 


Art.  190  (167).  Le  pret  a  la 
grosse  ne  contribue  pas  aux  avaries 
particulieres  des  choses  affectees. 

II  contribue  aux  avaries  com- 
munes survenues  posterieurement 
au  pret,  si  I'acte  n'exprime  que  le 
preteur  en  est  affranchi. 


TITRE  IX. 
Des  Bateaux. 

Art.  260.  Sont  consideres  comme 
bateaux  pour  I'application  de  la 
presente  loi,  les  batiments  qui  font 
ou  sont  destines  a  faire  habitu- 
ellement  dans  les  eaux  territori- 
ales,  le  transport  des  personnes  ou 
des  choses,  la  peche,  le  remor- 
quage,  le  dragage  ou  toute  autre 
operation. 

Sont  assimiles  aux  bateaux, 
pour  I'application  de  la  presente 
loi,  tous  les  batiments  de  moins 


TITLE  V. 

Of  Bottomry. 

Art.  188  (165).  In  case  of  ship- 
wreck, the  repayment  of  the  sums 
borrowed  on  bottomry  is  limited  to 
the  value  of  the  things  saved 
which  were  included  in  the  secu- 
rity, after  deduction  of  salvage 
expenses. 

Art.  189  (166).  In  case  of  the 
jettison  of  the  thing  bottomried, 
the  amount  paid  by  general  aver- 
age contribution  is  subject  to  the 
preferential  claim  of  the  lender  on 
bottomry. 

Art.  190  (167).  The  bottomry 
loan  does  not  contribute  to  parti- 
cular average.  The  lender  contri- 
butes to  general  average  occurring 
after  the  loan,  if  the  terms  of  the 
bond  do  not  expressly  exonerate 
him. 


TITLE  IX. 

Of  Boats. 

Art.  260.  The  craft  which  are 
used  or  intended  to  be  used  in 
territorial  waters  for  the  carriage 
of  persons  or  goods,  for  fishing, 
towing,  dredging  or  any  other 
operations  are  deemed  to  be  boats 
within  the  meaning  of  this  law. 


For  the  purposes  of  this  law,  all 
vessels  of  less  than  25  tons  burden, 
which  are  habitually  employed  at 


THE  LAW  OF  BELGIUM. 


477 


de  25  tonneaux  de  jauge  qui  font 
habituellement  en  mer  serablables 
operations. 

Art.  261.  Les  dispositions  du 
titre  ler  du  livre  II  du  present 
code  sont  applicables  aux  bateaux. 

Art.  262.  Les  dispositions  du 
ehapitre  ler  du  titre  II  de  ce  livre 
et  celles  des  articles  58  et  67  du 
ehapitre  II  (i)  sont  applicables  a 
la  navigation  interieure. 

Art.  263.  Le  contrat  de  trans- 
port par  navigation  interieure  est 
regi  par  les  articles  3,  4,  5,  7,  8 
et  9  de  la  loi  du  25  aout  1891  (sur 
le  contrat  de  transjjort)  en  tant 
qu'il  n'y  est  point  deroge  par  les 
dispositions  du  present  titre. 

II  se  constate  par  tous  moyens 
de  droit  et  notamment  par  le  con- 
naissement. 

Le  connaissement  est  signe  par 
le  batelier.  II  est  fait  en  trois 
exemplaires:  un  pour  le  batelier, 
un  pour  I'expediteur  et  un  pour 
le  destinataire. 

Les  articles  85,  86,  alineas  3,  4 
et  5,  87,  89,  90  et  91  (2)  du  pre- 
sent livre  sont  applicables  au  con- 
naissement. 

Art.  264.  Le  ehapitre  III  du 
titre  III  relatif  aux  avaries  et  a 
leur  reglement  est  applicable  aux 
bateaux,  a  I'exception  de  I'article 
154. 


sea  for  the    same    operations    are 
deemed  to  be  boats. 

Art.  261.  The  provisions  of 
Title  I.  of  Book  II.  of  this  Code 
are  applicable  to  boats. 

Art.  262.  The  provisions  of 
Chap.  I.  of  Title  II.  of  this  Book 
and  those  of  Arts.  58  and  67  of 
Chap.  II.  (1)  are  applicable  to  in- 
land navigation. 

Art.  263.  The  contract  of  car- 
riage by  inland  navigation  is 
regulated  by  Arts.  3,  4,  5,  7.  8 
and  9  of  the  Law  of  the  25th 
August,  1891  (On  the  Contract  of 
Carriage),  so  far  as  the  provisions 
of  this  title  are  not  inconsistent 
therewith. 

It  is  proved  by  every  kind  of 
legal  evidence,  and  in  particular 
by  the  bill  of  lading. 

The  bill  of  lading  is  signed  by 
the  boatman.  It  is  made  in  three 
parts,  one  for  the  boatman,  one  for 
the  shipper  and  one  for  the  con- 
signee. 

Arts.  85,  86,  paragraphs  3,  4  and 
5,  87,  89,  90  and  91  (2)  of  this 
Book  are  applicable  to  the  bill  of 
lading. 

Art.  264.  Chap.  III.  of  Title 
III.  relating  to  averages  and  their 
adjustment  is  applicable  to  boats 
with  the  exception  of  Art.   154. 


478  APPENDIX  F. 


APPENDIX  F. 


THE  LAW  OF  BRAZIL. 

The  foUowing-  are  the  provisions  of  the  Brazilian  Commercial  Code 
of   1850,  relating-  to  general  averag'e:  — 

TIT.  XIII. 

Of   Average. 

CHAPTER  I.— OF  THE  NATURE  AND  CLASSIFICATION 

OF  AVERAGES. 

Art.  761.  All  extraordinary  expenses  incurred  for  the  benefit  of 
the  ship  or  cargo,  jointly  or  separately,  and  all  damage  happening 
to  the  one  or  the  other,  from  the  loading  and  departure  until  the 
return  and  unloading  are  considered  averages. 

Art.  762.  Unless  the  parties  have  made  a  special  agreement  in  the 
charterparty  or  bill  of  lading,  averages  must  be  classified  and  regu- 
lated by  the  provisions  of  this  Code. 

Art.  763.  Averages  are  of  two  kinds:  general  or  common  average 
and  simple  or  particular  average.  The  amount  of  the  former  is 
divided  proportionately  between  the  ship,  freight  and  cargo;  that  of 
the  latter  is  borne  either  by  the  ship  alone,  or  by  the  thing  alone 
which  has  suffered  the  damage  or  caused  the  expense. 

Art.  764.   The  following  are  general  average: — 

1.  x\nything  given  to  an  enemy,  corsair,  or  pirate,  by  way  of  com- 
position, or  as  ransom  for  ship  and  cargo,  jointly  or  separately. 

2.  Things  jettisoned  for  the  common  safety. 

3.  Cables,  masts,  sails  and  other  apparel  cut  away  or  parted  by 
press  of  sail  to  save  the  ship  and  cargo. 

4.  Anchors,  cables  and  other  objects  abandoned  for  the  common 
safety  or  benefit. 

5.  Damage  caused  by  the  jettison  to  the  goods  remaining  on  board. 

6.  Damage  caused  intentionally  to  the  ship  to  facilitate  the  clearing 
out  of  water,  and  damage  sustained  by  the  cargo  from  this  cause. 


THE  LAW  OF  BRAZIL.  479 

7.  Tho  medical  treatment,  maintenance  and  compensation  of 
members  of  the  crew,  wounded  or  maimed  in  defending  the  ship. 

8.  The  compensation  or  ransom  of  members  of  the  crew  sent  to 
sea  or  ashore  in  the  .service  of  the  ship  and  cargo,  and  on  tliat  occa- 
sion imprisoned  or  detained. 

9.  The  wages  and  board  of  the  crew  daring  delay  in  a  port  of 
refuge. 

10.  The  pilotage  and  other  dues  for  entering  and  leaving  a  port 
of  refuge. 

11.  The  rent  of  warehouses  for  the  deposit  at  a  port  of  refuge  of 
goods  which  cannot  be  kept  on  board  during  the  repair  of  the  ship. 

12.  The  expenses  of  reclaiming  the  ship  and  cargo  incurred  by  the 
captain  in  a  single  application  for  the  two  jointly,  and  the  board 
and  wages  of  the  crew  during  such  reclamation,  provided  that  the 
ship  and  cargo  are  released  and  restored. 

13.  The  cost  of  discharging  and  expense  of  lightening  the  ship  in 
order  to  enter  a  harbour  or  roadstead,  when  the  ship  is  obliged  to  do 
so  by  storm  or  an  enemy's  pursuit,  and  the  damage  sustained  by  the 
goods  by  discharging  them  and  reloading  them  in  the  ship. 

14.  Damage  suffered  in  the  hull  and  keel  of  a  ship  from  being 
voluntarily  stranded  to  prevent  loss  or  capture  by  an  enemy. 

15.  Expenses  incurred  in  floating  a  stranded  ship,  and  all  rewards 
for  extraordinary  services  rendered  to  prevent  her  total  loss  or  capture. 

IG.  Loss  or  damage  suffered  by  the  goods  placed  in  lighters  or  boats 
in  consequence  of  peril. 

17.  Tho  wages  and  board  of  the  crew,  if  the  ship  is  obliged  after 
the  commencement  of  the  voyage  to  suspend  it  by  order  of  a  foreign 
Power,  or  by  the  outbreak  of  war;  this  for  all  the  time  that  the  ship 
and  cargo  are  detained. 

18.  Premium  on  a  bottomry  loan,  raised  to  cover  costs  belonging 
to  general  average. 

19.  Insurance  premium  for  general  average  expenses,  and  losses 
caused  by  the  sale  of  part  of  the  cargo  at  a  port  of  refuge,  to  meet 
the  said  expenses. 

20.  Judicial  costs  for  adjusting  and  distributing  the  general 
average . 

21.  Expenses  of  an  extraordinary  quarantine. 

And  in  general  losses  caused  voluntarily,  in  case  of  peril  or  unfore- 
seen disaster,  and  suffered  as  immediate  consequences  of  such  measures, 
.as  well  as  expenses  inciirred  under  the  like  circumstances,  after  de- 
liberation, for  the  common  good  and  safety  of  the  ship  and  merchan- 
dise, from  the  loading  and  departure  until  the  arrival  and  discharge. 

Ari.  765.  Expenses  occasioned  by  the  inherent  defect  of  the  ship, 
-or  bv  the  fault  or  neglect  of  the  captain  or  crew  shall  not  be  deemed 


480  ■  APPENDIX  F. 

general  average,  although  incurred  voluntarily  and  after  deliberation 
for  the  good  of  the  ship  and  cargo.  All  the  expenses  must  be  borne 
by  the  captain  or  ship  (Art.  565). 

Art.   706.  The  following  are  simple  and  particular  average  :  — 

1.  Loss  or  damage  of  goods  by  storm,  capture,  shipwreck,  or  acci- 
dental stranding,  during  the  voyage,  and  the  expenses  incurred  to 
save  them. 

2.  The  loss  of  cables,  hawsers,  anchors,  sails  and  masts,  caused  by 
a  storm  or  other  accident  of  the  sea. 

3.  The  expenses  of  reclamation,  when  the  ship  and  goods  are  re- 
claimed separately. 

4.  The  particular  repair  of  packages,  and  expenses  incurred  in  pre- 
serving damaged  goods. 

5.  The  increased  freight  and  expenses  of  loading  and  discharging 
when,  the  ship  having  been  declared  innavig-able,  the  goods  are  carried 
to  the  place  of  their  destination  by  one  or  more  ships. 

In  general,  expenses  incurred  by  the  ship  alone  or  the  cargo  alone 
during  the  time  of  the  risk. 

Art.  707.  If  by  reason  of  shoals  or  sandbanks  the  ship  cannot  start 
from  her  port  of  departure  with  her  whole  cargo  on  board,  or  cannot 
reach  her  port  of  destination  without  discharging  part  of  it  into  lighters, 
the  expenses  of  lightening  are  not  considered  average,  but  fall  on 
the  ship  alone,  unless  the  contrary  be  stipulated  in  the  charterparty 
or  bill  of  lading. 

Art.  768.  Similarly  pilotage  on  the  coasts  and  bars  and  other  ex- 
penses of  entering  and  leaving  harbours  and  rivers,  permits,  visits, 
tonnage,  beaconage,  anchorage  and  other  navigation  dues  are  not 
average,  but  ordinary  exj)enses  to  be  borne  by  the  ship. 

Art.  769.  When  it  is  necessary  to  jettison  part  of  the  cargo,  the 
first  to  be  jettisoned  shovdd  be  the  merchandise  and  articles  stowed 
on  deck  {em  cima  do  consuz);  after  these  the  most  heavy  and  least 
valuable  should  be  jettisoned,  and  in  case  of  equality,  those  which 
are  stowed  under  hatches  (na  coherta)  and  are  most  accessible.  The 
utmost  possible  care  should  be  taken  to  note  the  marks  and  numbers 
of  the  packages  jettisoned. 

Art.  770.  Following  the  consultation  held  with  regard  to  the  jetti- 
son (Art.  509),  a  detailed  statement  shall  be  drawn  up  of  the  jettisoned 
goods;  and  if  by  reason  of  the  jettison  any  damage  was  done  to  the 
ship  or  the  rest  of  the  cargo,  mention  shall  also  be  made  of  this 
accident. 

Art.  771.  The  losses  which  the  goods  sustain  when  put  into  lighters 
in  the  ordinary  course  of  transport,  or  to  lighten  the  ship  in  case 


THP]  LAW  OF  BRAZIL.  481 

of  danger,  shall  be  adjusted  in  conforrait}^  with  the  provisions  of  this 
chapter  applicable  to  them,  according-  to  the  different  causes  from  which 
the  loss  resulted. 


CHAPTER  2.— OF  THE  LTQI'IDATION,  DIVISHJN  AND 
CONTRIBUTION  OF  GENERAL  AVERAGE. 

Art.  772.  Before  damage,  sustained  bj-  the  ship  or  cargo,  can  bo 
considered  average  to  be  charged  to  the  insurer,  it  must  be  examined 
by  two  skilled  arbitrators,  who  shall  declare — (1)  the  cause  of  the 
damage;  (2)  what  part  of  the  cargo  has  been  damaged  and  by  what 
cause,  stating  its  marks,  numbers  or  packages;  (3)  in  case  of  the 
ship  or  its  appurtenances,  what  is  the  value  of  the  damaged  articles 
and  what  it  will  cost  to  repair  or  replace  them. 

All  these  formalities,  examinations  and  surveys  shall  be  directed 
by  the  judge  of  the  particular  district,  and  carried  out  after  cita- 
tion of  the  interested  parties,-  either  personally  or  by  their  represen- 
tatives; and  the  judge  has  power,  in  the  absence  of  the  parties,  to 
nominate  officially  an  intelligent  and  fit  person  to  represent  thom 
(Art.  618j. 

The  formalities,  examinations  and  surveys  as  regards  the  hull  of 
the  ship  and  its  appvirtenances  should,  whenever  possible,  be  carried 
out  before  the  repairs  are  begun. 

Art.  773.  Damaged  goods  shall  always  be  sold  by  public  auction 
to  the  highest  bidder,  and  paid  for  on  delivery;  and  the  same  course 
shall  be  taken  with  the  ship  when  she  has  to  be  sold  according  to 
the  provisions  of  this  Code.  In  such  cases  the  judge,  if  it  seems  to 
him  convenient,  or  if  any  interested  party  requires  it,  may  order  that 
the  hull  or  any  of  its  appurtenances  shall  be  sold  separately. 

Art.  774.  The  estimate  of  the  loss  for  allowance  in  general  average 
should  be  based  on  the  difference  between  the  gross  sound  and  damaged 
values  of  the  goods  for  cash  at  time  of  delivery;  in  no  case  should 
the  net  value  be  adopted,  nor  that  which  might  bo  obtained  by  delaying- 
the  sale  or  by  offering  credit. 

Art.  775.  If  the  owner  or  consignee  does  not  wish  to  sell  the  sound 
portion  of  his  goods,  he  cannot  be  compelled  to  do  so.  In  that  event, 
the  value  for  the  calculation  of  the  allowance  will  be  the  current  price 
which  the  goods,  if  sold  at  the  time  of  delivery,  would  have  realised 
in  the  market,  as  indicated  by  the  prices  current  at  the  place  of  de- 
livery, or  in  the  absence  of  these,  as  certified  to,  under  oath,  by  two 
accredited  merchants  dealing  in  similar  goods. 

Art.  783.  The  adjustment  and  apportionment  of  the  general  average 
L.  II 


482  APPENDIX  F. 

shall  be  made  by  arbitrators  appointed  by  both  parties  at  the  Jiistance 
of  the  captain. 

In  the  event  of  the  parties  not  being-  willing  to  act,  the  arbitrators 
shall  be  appointed  either  by  the  Tribunal  of  Commerce,  or,  in  those 
cases  where  the  port  is  distant  from  the  Tribunal,  by  the  commercial 
judge  in  whose  jurisdiction  the  matter  falls. 

If  the  captain  should  fail  to  arrange  for  the  adjustment  of  the 
general  average,  any  interested  party  may  immediately  take  the  neces- 
sary steps  for  this  purpose. 

Art.  784.  The  captain  has  the  right  to  demand,  before  opening  the 
ship's  hatches,  that  the  consignees  of  the  cargo  shall  give  proper  secu- 
rity for  the  payment  of  the  general  average,  for  which  their  respec- 
tive goods  are  liable  as  their  share  of  the  general  contribution. 

Art.  785.  If  the  consignees  refuse  to  give  the  security  demanded, 
the  captain  may  require  the  judicial  deposit  of  the  goods  liable  to 
contribute,  until  he  is  paid,  the  proceeds  of  their  sale  being  subjected 
to  the  payment  of  the  general  average,  as  soon  as  the  distribution 
takes  place. 

Art.  786.  The  adjustmejit  and  distribution  of  the  general  averag-e 
shall  be  made  at  the  port  of  delivery  of  the  cargo.  Nevertheless 
when,  on  account  of  damage  sustained  after  sailing,  the  ship  has  been 
obliged  to  return  to  the  port  of  loading,  the  necessary  expenses  of 
reijairing  the  general  average  damage  may  be  adjusted  there. 

Art.  787.  When  the  general  average  is  adjusted  at  the  port  where 
the  cargo  is  delivered,  the  following  interests  must  contribute:  — 

1.  The  cargo,  including  specie,  silver,  gold,  precious  stones  and 
all  other  valuables  on  board. 

2.  The  ship  and  appurtenances  on  their  actual  value  at  the  port 
of  discharge. 

o.   The  freight,  on  half  its  value. 

The  provisions  on  board  for  the  supply  of  the  shi]),  the  effects  of 
the  captain,  crew  and  passengers  for  their  personal  use,  and  the 
objects  brought  up  from  the  sea  by  divers  at  the  expense  of  the 
owner  do  not  contribute. 

Art.  788.  When  the  adjustment  is  made  at  the  port  of  loading-, 
the  value  of  the  cargo  shall  be  estimated  from  the  invoices,  adding 
to  the  cost  price  the  expenses  incurred  up  to  the  time  of  ship- 
ment. The  ship  and  freight  shall  contribute  on  the  basis  established 
by  Art.  787. 

Art.  789.  Whether  the  adjustment  is  made  at  the  port  of  loading 
or  discharge,  the  expenditures  which  are  made  good  by  way  of  con- 
tribution contribute  to  general  average. 


THE  LAW  OF  BRAZIL.  483 

Art.  790.  Articles  carried  on  deck  and  those  which  have  been 
loaded  without  bills  of  lading,  signed  by  the  captain,  and  those  which 
their  owner  or  his  representative,  on  the  occasion  of  a  sea  peril,  has 
moved  from  the  place  where  they  were  stowed,  without  the  captain's 
leave,  shall  contribute  on  their  respective  values  when  they  arrive 
in  .safety;  but  the  owner,  in  the  converse  case,  is  not  entitled  to  a 
reciprocal  indemnity. 

Art.  791.  Except  in  the  cases  dealt  with  in  Arts.  651  and  764, 
Nos.  12  and  19,  the  owner  of  an  int^erest  sacrificed  by  a  genera!  average 
act  cannot  claim  contribution  from  the  interests  saved,  if  these  by 
some  accident  do  not  come  into  the  possession  of  the  owners  or  con- 
signees, or  if  coming  into  their  possession,  they  have  no  value. 

Art.  792.  If,  in  the  event  of  a  jettison,  the  vessel  is  saved  from 
the  peril  which  gave  rise  to  the  general  average  act,  but  is  subse- 
quently lost  on  the  voyage,  the  goods  saved  from  the  wreck  shall 
contribute  in  general  average  to  the  loss  of  those  which  ^vere  jetti- 
soned at  the  time  of  the  first  peril. 

If  the  vessel  is  lost  as  a  result  of  the  first  named  peril,  but  part 
of  the  cargo  is  salved,  the  latter  does  not  contribute  towards  the  goods 
jettisoned  on  the  occasion  of  the  disaster  Avhich  caused  the  wreck. 

Art.  793.  The  decree  which  confirms  the  apportionment  of  the 
general  average  and  the  consequent  liability  of  the  various  contri- 
buting interests,  is  enforceable  at  law,  and  can  be  enforced  immediately, 
although  it  may  be  appealed  against. 

Art.  794.  If  after  the  contributions  have  been  paid,  the  owners  of 
the  goods  made  good  in  general  average  should  recover  the  same,  they 
must  return  the  net  value  of  the  goods  salved,  j^ro  rata,  to  all  who 
contributed.  If,  however,  these  goods  were  not  taken  into  account 
in  the  apportionment  of  the  general  average,  the  owners  are  not 
obliged  to  bring  into  contribution  the  value  of  such  goods  recovered 
after  couqilction  of  the  apportionment. 


1  1  2 


484  APPENDIX  G. 


APPENDIX  G. 


THE   LAW   OF   CHILI. 

The  Chilian  Commercial  Code  was  enacted  iii  1865,  and  came  into 
force  in  1867.  The  following-  axe  its  provision.s  which  relate  to  general 
average : — 

TITLE  V. 

Of  Risks  and  Damage  during  Maritime  Transport. 

Section  1. — Definitions  and  General  Bules. 

Art.  1084.  The  following-  are  considered  average  in  the  legal  sense- 
of  the  word:  — 

1.  All  damage  which  the  vessel  suffers,  loaded  or  in  ballast,  before 
sailing,  during  the  voyage,  or  after  she  has  been  anchored  at  the  port 
of  destination,  and  also  the  damage,  which  the  goods  may  have 
suffered  from  the  time  they  are  loaded  in  lighters  or  other  small  boats 
at  the  place  of  shipment  until  they  are  unloaded  at  the  place  of  desti- 
nation to  which  thev  are  consigned. 

2.  All  extraordinary  and  unforeseen  expenses  incurred  during  the 
voyage  for  the  preservation  of  the  vessel,  of  the  cargo,  or  of  both. 

Art.  1085.  In  ordinary  cases  the  following-  are  not  considered 
average : — 

1.  Coast  and  port  pilotage. 

2.  Expenses  of  lighters  and  tugs. 

3.  Port  dues. 

4.  Expenses  of  lightening  a  vessel  which,  owing  to  want  of  water, 
is  unable  to  sail,  or  to  enter  its  port  of  destination,  with  all  its  cargo. 

5.  In  general,  all  ordinary  expenses  of  navigation. 

•  The  shipowner  is  solely  responsible  for  all  the  expenses  stated, 
unless  it  is  stipulated  otherwise  in  the  charterparties  or  bills  of 
lading. 


THE  LAW  OF  CHILI.  485 

Art.  ]086.  Unless  special  arrang-ements  have  been  made,  the  re- 
sponsibility for,  and  the  liquidation  and  payment  of  the  average  shall 
be  decided  in  accordance  with  the  provisions  of  this  Title. 

Art.  1087.  For  the  adjustment  of  average  made  outside  the  territory 
of  the  Republic  the  laws  and  customs  of  the  place  whore  the  average 
has  been  proved  shall  be  observed. 

Art.   1088.  Averaa-e  is  ffross  or  general,  simple  or  particular. 


Section  2.  —  (JfGinH'ral  Average,  Adjust  nnnt  of  Average ,  and  Jettison. 

Art.  1089.  General  average  iucJudes  not  only  damage  caused  in  pur- 
suance of  a  resolution  taken  before  or  after  the  ship  has  commenced 
its  voyage,  to  the  ship  and  its  cargo,  conjointly  or  separately,  in  order 
to  save  them  from  imminent  sea  risk,  but  also  such  damage  as  is  a 
direct  and  inevitable  consequence  of  the  sacrifice,  and  the  unforeseen 
expenses  incurred  for  the  general  honofit  at  the  time  and  in  the  form 
indicated. 

Art.   1090.   The  following  are  deemed  to  be  general  average:  — 

1.  The  delivery  of  anything  to  enemies  or  pirates  as  composition 
and  ransom  for  the  vessel,  the  cargo,  or  both  conjointly. 

2.  The  wages  and  expenses  of  the  hostages  during  their  detention 
until  their  return  to  the  ve.ssel  or  to  their  domicile. 

o.  The  expenses  incurred  for  claiming  conjointly  the  restoration  of 
the  vessel  and  cargo  which  have  been  captured,  and  also  the  main- 
tenance of  the  captain,  officers  and  crew  during  the  time  they  are 
detained,  including  wages  and  food . 

4.  The  damage  which  the  vessel  or  the  cargo  may  have  suffered 
in  the  defence  against  enemies  or  pirates,  the  loss  of  ammunition 
consumed  during  the  combat,  and  the  rewards  promised  or  given  to 
the  crew  for  the  purpose  of  stimulating  their  courage. 

5.  The  medical  expenses  and  maintenance  of  and  allowances  to  the 
crew  and  passengers,  wounded,  maimed  or  crippled  whilst  defending 
the  vessel  or  in  the  ship's  service  during  the  combat,  and  the  wages 
of  the  former  imtil  they  are  completely  restored  to  health. 

6.  The  wages,  maintenance  and  ransom  of  the  crew,  who  have  been 
captured  or  detained  and  who  are  in  tlic  service  of  the  vessel  cither 
on  land  or  on  sea. 

7.  The  wages  and  maintenance  of  the  crew  for  the  time  during 
which  the  vessel  is  waiting  for  a  convoy,  or  remains  in  a  neutral  port 
on  account  of  a  well-founded  fear  of  enemies  or  pirates,  or  owing 
to  the  port  of  destination  being  blockaded. 

8.  Tlie  loss  of  things  thrown  into  the  sea  to  lighten  the  ship,  whether 


486  APPENDIX  G. 

they  belong-  to  the  ship,  the  cargo  or  the  crew,  and  the  damage  which 
the  jettison  causes  to  the  things  remaining  on  board. 

9.  The  intentional  cutting-  or  rendering  useless  of  the  masts,  yards, 
cables,  sails  or  other  appurtenances  of  the  vessel. 

10.  The  voluntary  abandonment  of  the  anchors,  boats,  launches  and 
other  ai^purtenances  to  save  the  ship  from  collision  or  from  any  other 
sea  risk. 

1 1 .  The  damage  caused  by  carrying  a  press  of  sail  in  order  to  save 
the  vessel  and  cargo  from  imminent  danger. 

12.  The  damage  caused  intentionalh*  to  the  vessel  for  the  purpose 
of  extinguishing  fire  or  to  facilitate  the  draining  of  water,  the  jettison, 
the  lightening  or  extrication  of  the  cargo,  and  also  the  damage  caused 
in  consequence  of  these  operations. 

13.  The  expenses  of  lightening  or  transhipping  a  part  of  the  cargo 
for  the  purpose  of  reaching  a  port  which  is  not  the  port  of  desti- 
nation of  the  vessel,  in  order  to  save  it  from  the  attacks  of  enemies  or 
pirates,  or  from  a  storm  or  any  other  sea  risk,  and  the  loss  of  the  goods 
which  have  been  unloaded  or  transhipped,  or  the  damage  which  has 
been  caused  to  the  goods  during  the  unloading,  transhipment  or  reship- 
ment  of  the  same. 

14.  The  wages  and  maintenance  of  the  crew  in  cases  where  the 
ship  has  been  obliged  to  put  into  a  port  of  refuge  for  the  common 
benefit,  but  only  for  the  time  which  was  strictly  required  by  the  neces- 
sity of  the  case;  the  dues  for  entering  and  leaving  the  port,  expenses 
of  unloading  and  reloading-,  and  also  the  rent  of  the  warehouses  in 
which  goods  are  stored  Avhich  could  not  remain  on  board  whilst  the 
repairs  Avere  being  made. 

15.  The  depreciation  of  goods  sold  in  the  case  where  the  ship  has 
been  obliged  to  put  into  a  port  of  refuge  for  the  purpose  of  repairing 
damage  caused  by  an  accident  Avhich  constitutes  general  average,  the 
maritime  profit,  the  commission  on  bottomrj-  loans  raised  to  pay  the 
cost  of  the  repairs,  and  the  insurance  premiums  for  these  expenses. 

IG.  The  damage  caused,  conjointly  or  separately,  to  the  ship  or 
cargo,  bj'  the  voluntar}-  stranding  of  the  ship  for  the  purpose  of 
saving  them  from  a  sea  risk,  and  the  expenses  incurred  for  re-floating 
the  vessel. 

17.  The  expenses  incurred  for  inspecting,  classifying  and  appor- 
tioning the  general  average. 

18.  In  general,  all  losses,  damage  and  expenses  incurred  under  the 
circumstances  stated  in  Article  1089. 

Art.  1091.  In  order  to  determine  the  responsibilitj-  of  the  insurer 
of  the  vessel  and  that  of  the  lender  on  bottomry  of  the  hull  and  keel, 
the  damage  which  the  vessel  sustains,  and    the    expenses    incurred, 


THE  LAW  OF  CHILI.  487 

whilst  navigating  in  ballast  shall  also  be  considered  as  general  average, 
provided  they  are  of  the  nature  indicated  in  Article  1089. 

Art.  1092.  The  vessel,  the  freight  and  the  goods  Avhich  are  con- 
tained in  it  at  the  time  when  the  risk  is  being  run,  are  responsible 
for  the  general  average,  which  is  to  be  paid  by  contribution  from 
their  owners. 

Consequently  the  following  contribute  to  the  payment  of  the  general 
average : — 

1.  The  vessel  for  its  value  at  the  port  of  discharge. 

2.  The  whole  freight  which  the  vessel  receives  for  the  passengers, 
the  goods  saved  and  the  goods  sacrificed  for  the  common  benefit,  the 
expenses  of  the  maintenance  and  wages  of  the  captain  and  crew  being 
previously  deducted. 

3.  The  goods  on  board,  including  those  which  have  been  carried 
on  the  deck  (en  el  combes)  of  the  ship,  or  under  cover  without  the 
usual  bills  of  lading. 

4.  The  goods  sold  for  the  requirements  of  the  vessel,  and  the 
amount  at  which  the  sacrificed  goods  are  valued. 

5.  Coined  money  belonging  to  the  vessel,  cargo  and  passengers,  in 
accordance  with  the  rate  of  exchange  at  the  place  where  the  voyage 
ends. 

The  wages  of  the. captain  and  the  crew  also  contribute  in  case  of 
ransom. 

Art.  1093.  The  rule  fixed  in  paragraph  1  of  the  preceding  article  is 
applicable  in  the  event  of  the  vessel  or  cargo  being  saved  by  other 
means  than  those  intentionally  used  for  saving  it. 

It  is  likewise  applicable  in.  case  the  vessel  and  cargo,  after  having 
been  saved  from  one  disaster,  afterwards  perish  in  another  disaster 
whilst  navigating,  provided  that  some  of  ihc  articles  on  board  during 
the  first  disaster  are  saved. 

Art.  1094.  The  following  do  not  participate  in  the  benelil  of  the 
contribution:  — 

1.  Average  which  does  not  exceed  one  hundredth  part  of  the  value 
of  the  vessel  or  the  cargo  to  which  the  sacrificed  articles  or  goods 
belong. 

2.  Goods  which  were  shipped  without  the  usual  bills  of  lading. 

3.  Goods  stowed  on  the  deck  [^sobre  el  combes)  of  the  ship  without 
the  unanimous  consent  of  all  the  persons  mentioned  in  No.  7  of 
Article  907  (a). 

In  the  latter  case  the  shipowner  [^fletante)  (b)  will  be  responsible  for 


{a)  I.e.,  the  shipowner,  officers  and  freighters,  but  their  consent  is  not  required  for 
ships  engaged  in  short  coasting  voyages. 

(A)  Fletante  is  defined  in  Art.  'JTO  as  the  person  who  lets  the  ship  and  undertakes 
the  transport  (of  the  goods) . 


488  APPENDIX  G. 

the  loss  or  average  oven  when  the  g-oods  have  beeu  placed  uu  the 
deck  of  the  vessel  with  the  conseut  of  the  shipper  to  whom  they 
belong. 

Art.  109,).  The  goods  jettisoned  and  afterwards  recovered  will  not 
be  included  in  the  adjustment  of  the  average,  excapt  for  the  diminu- 
tion oi'  value  which  they  have  suffered,  in  addition  to  the  expenses 
of  salving  them. 

If  the  amount  of  the.se  goods  has  beeu  included  in  the  general 
average  and  has  been  paid  to  the  owners  before  their  recovery  has 
been  verified,  ihe  said  owners  must  return  the  contribution  which  they 
have  received,  and  can  only  keep  the  amount  corresponding  to  the 
deterioration  of  the  goods  plus  the  salvage  expenses. 

Art.  1096.  The  following  do  not  contribute  to  the  reimbursement 
of  general  average:  — 

1.  Munitions  of  war  and  provisions  intended  for  consumption  on 
board  the  vessel. 

2.  The  personal  effects  and  clothes  of  the  captain,  officers  and  crew, 
which  have  already  been  used. 

3.  The  personal  effects  and  clothes,  which  have  already  been  used, 
belonging  to  the  shippers,  supercargoes  and  passengers,  to  the  amount 
of  the  value  which  is  assigned  to  those  which  the  captain  excludes 
from  the  contribution. 

4.  Goods  lost  in  a  previous  disaster. 

Art.  1097.  It  is  for  the  coimcil  of  the  ship's  officers  to  decide  upon 
the  sacrifices  and  expenses   which   form  general  average. 

The  shippers  and  their  supercargoes  shall  be  invited  to  the  council 
and  shall  be  heard,  so  that  when  they  are  informed  of  what  has  been 
decided  upon,  liiey  inay  prorest  accordiuu-  to  their  opinion,  but  they 
have  no  consultative  vote. 

The  resolutions  of  the  majority  of  the  council  shall  be  carried  into 
effect,  notwithstanding  the  opposition  of  the  .shippers  or  supercargoes 
and  on  the  responsibility  of  the  members  who  have  agreed  to  it. 

In  this  case  the  shippers  wlio  consider  themselves  wronged  will  have 
the  right  to  claim  indemnification  from  those  members  of  the  council 
who  voted  for  the  average  from  fraud,  negligence  or  ignorance. 

If  the  votes  be  eqtially  di\  idod  the  captain  will  liave  tiie  casting 
vote. 

Art.  1098.  If  the  imminence  of  the  danger  does  not  allow  the 
captain  to  obtain  the  opinion  of  the  ship's  officers,  or  hear  the  shippers 
or  supercargoes,  he  can  -decide  alone  and  on  his  own  responsibility 
to  mak(>  the  sacrifices  or  incur  the  expenses  which  he  considers  neces- 
sary for  the  common  safety. 


THE  LAW  OF  CHILI.  .  ■i''^-> 

He  can  also  act  contrary  to  the  resolution  of  the  nioetino-  sl„,ul,l 
he  consider  ii:  opposed  to  the  common  interest,  buL  in  ihis  case  lie 
alone  will  be  responsible  for  the  damage  and  losses  which  his  deci- 
sion may  cause. 

Art.  1099.  If  the  urgency  of  the  case  allows  it,  the  captain  shall 
enter  the  resolutions  of  the  .meeting  in  the  ship's  log-book  before 
carrying  them  into  effect. 

This  entry  must  state  ihat  the  shippers  and  supercargoes  present 
were  summoned  and  heard,  and  muse  state  the  reasons  which  were 
decisive  for  the  resolution,  and  the  votes  opposed  to  it  with  the  reasons 
given  by  the  dissident  voters,  and  it  must  be  signed  personally  or 
by  proxy  by  all  the  persons  present  at  the  meeting. 

The  captain  nmst  deposit  a  certified  copy  of  this  entry  at  the  secre- 
tary's office  of  the  Chamber  of  Commerce  at  the  first  Chilian  port 
where  he  arrives  within  twenty-four  hours  reckoned  from  the  time 
Avhen  tlie  vessel  was  admitted  to  free  pratique,  and  at  the  same  time 
he  must  confirm  on  oath  all  the  facts  stated  in  the  same. 

If  the  first  port  at  which  the  vessel  arrives  is  a  foreign  port,  ihe 
presentation  and  ratification  of  the  entry  shall  be  made  before  the 
Chilian  Consul,  and  if  there  be  none,  before  the  authorities  mentioned 
in  the  second  paragraph  of  No.  17  of  Article  905  (c). 

Art.  1100.  If  the  shippers  and  supercargoes  present  have  not  been 
summoned  and  heard  they  shall  be  exempt  from  contributing  to  the 
general  average,  and  the  captain  will  have  txj  pay  their  respective 
c-ontributions,  except  in  the  case  stated  in  iho  first  paragraph  of 
Article  1098. 

Art.  1101.  As  soon  as  the  danger  has  disappeared  which  compelled 
the  captain  to  decide  on  his  own  responsibility  on  a  general  average, 
he  must  enter  and  sign  in  the  ship's  log-book  a  statement  giving  all 
the  particulars  of  the  event,  and  also  state  in  it  the  reasons  for  his 
decision  and  those  which  he  had  for  omitting  to  summon  and  liear 
the  opinion  of  the  shippers  and  supercargoes. 

The  ship's  officers  and  the  owners  or  agents  of  the  cargo  need  not 
sign  tlic  report,  but  if  they  sign  it,  they  must  in  due  course  ratif}^ 
the  contents  by  a  solemn  oath. 

Th(^  report  must  bo  presented  and  ratified  by  the  captain  in  ilic 
form  and  within  the  period  stated  in  Article  1099. 

Art.  1102.  Should  the  council  of  tlie  officers  or  the  captain  alone 
decide  to  throw  overboard  a  part  of  the  cargo,  or  some  of  the  articles 


'c)   I.e.,  before  the  local  authority  havinjr  cogniizancc  of  commercial  matter.s,  or  if 
there  be  none  before  the  ordinary  magistrate. 


490  APPENDIX  G. 

belong-iiig-  to  the  vessel,  the  jettison  shall    be    carried    out    in    the 
following-  order:  — 

1.  The  goods  which  are  placed  on  the  deck  {sohre  el  combes)  of 
the  vessel. 

2.  The  articles  which  are  of  the  least  necessity  for  the  service  of 
the  crew  or  ship. 

o.   The  goods  which  are  heaviest  and  of  least  value. 

4.  Those  which  are  on  the  first  deck  {en  el  primer  puente)  and 
afterwards  those  of  the  second  deck  {del  segmido),  both  being  of  the 
same  class. 

This  order  can  be  changed  by  the  captain  in  agreement  Avith  the 
ship's  officers,  if  the  conditions  of  the  stowage  of  the  cargo  and  other 
circumstances  of  the  case  so  require. 

Art.  1103.  After  the  jettison  the  captain  must  make  a  memorandum, 
at  the  foot  of  the  corresponding  report,  of  the  goods  thrown  over- 
board, and  of  the  damage  which  the  vessel  and  the  remaining  cargo 
have  suffered  in  immediate  and  direct  consequence  of  this  act. 

The  memorandum  shall  be  signed  by  the  captain  and  the  officers 
of  the  vessel  and  shall  be  rectified  at  the  time  of  unloading,  should 
any  of  the  goods  thrown  overboard  not  have  been  mentioned  owing 
to  the  hurry  and  confusion  of  the  jettison. 

Section  3.  —  0/ the  Proof,  Regulation  (uid  Distrihuiioii  of  the  (Tviwral  Average. 

Art.  1104.  The  proof,  regulation  and  distribution  of  the  general 
average  shall  be  made,  at  the  request  of  the  captain,  before  the  proper 
court  at  the  unloading  port,  whether  Chilian  or  foreign,  all  the 
interested  parties  or  their  agents  being  properly  summoned  and  heard 
in  accordance  with  the  law. 

Should  all  the  interested  parties  not  be  present,  it  shall  bo  sufficient 
to  summon  and  hear  the  two  principal  agents. 

If  there  are  no  persons  who  legally  represent  the  absent  interested 
parties,  a  curator  shall  be  appointed  to  act  for  them. 

Art.  1105.  If  the  captain  does  not  properly  carry  out  the  obliga- 
tion, which  is  imposed  upon  him  by  the  first  paragraph  of  the  pre- 
ceding article,  the  owner  of  the  vessel,  the  shippers  and  any  other 
interested  person  can  invoke  the  law  for  the  ad j  ustment  of  the  general 
average,  reserving  their  right  to  demand  indemnification  for  the  damage 
and  losses  which  the  delay  causes  them. 

Art  1106.  The  proceedings  mentioned  in  Article  1104  can  be  taken 
in  the  port  of  shipment  in  the  following  cases:  — 

1.  When  in  the  opinion  of  the  Chamber  of  Commerce  it  would  have 
been  impossible  to  make  the  proof,  regulation  and  distribution  of  the 
average  at  the  port  of  discharge. 


THE  LAW  OF  CHILI.  491 

2.  Whenever  the  jettison  takes  place  at  a  place  uear  the  port  of 
departure,  the  vessel  shall  return  to  it  or  put  into  another  port  near 
by,  and  the  owner  of  the  goods  which  have  been  thrown  overboard 
shall  replace  them  with  others  of  equal  class  and  quality. 

Art.  1107.  By  port  of  discharge  is  not  only  understood  the  port  of 
destination  of  the  shipment,  but  also  the  port  at  which  the  largest 
portion  of  the  cargo,  estimated  by  its  value,  is  unloaded,  and  that 
port  where  the  voyage  terminates  owing  to  the  vessel  being  innavi- 
gable, or  to  the  cancellation  or  compulsory  shortening  of  the  voyage, 
unless  in  the  first  of  these  three  last  cases  the  cargo  is  carried  on  in 
another  ship. 

Art.  1108.  The  average  shall  be  proved  by  means  of  the  protest  or 
report  mentioned  in  Articles  1099  and  1101,  and  shall  be  ratified  by 
the  persons  who  have  signed  the  same. 

The  captain  can  confirm  the  contents  of  the  protest  by  the  decla- 
ration of  the  passengers,  and  failing  this  by  the  statement  of  the 


crew 


The  protest  admits  of  proof  to  the  contrary,  and  its  absence  can 
be  remedied  by  any  of  the  means  of  proof  which  this  Code  sanctions. 

Art.  1109.  When  the  captain  presents  the  protest,  he  must  request 
the  appointment  of  experts,  who  after  having  been  sworn  must  be 
present  at,  and  examine  closely,  the  opening  of  the  hatches,  and  state 
in  writing  what  they  have  observed  with  regard  to  the  condition  of 
the  vessel  and  the  cargo. 

Art.  1110.  After  having  considered  the  proofs  given  by  the  inte- 
rested parties,  the  Court  shall  declare  the  legality  or  the  illegality 
of  the  average. 

In  the  former  case  it  shall  proceed  with  the  classification  of  the 
average  and  require  the  interested  parties  to  appoint  experts,  both 
for  the  appraisement  of  the  vessel,  cargo,  losses  and  damage,  and 
for  the  adjustment  and  distribution  of  the  general  average. 

In  the  second  case,  it  will  condemn  the  captain  to  pay  the  damage 
and  losses,  according  to  law. 

Art.  1111.  After  the  cargo  has  been  examined  and  sworn  to,  tlie 
expeits  and  appraisers  shall  value  the  lost  goods  and  the  damage 
which  the  goods  saved  have  suffered. 

The  value  of  the  lost  goods  shall  be  fixed,  after  deducting  the 
freio-hl,  import  duties  and  ordinary  expenses,  at  the  market  price  of 
other  good.'-'  of  the  same  class  at  the  port  of  discharge. 

The  nature  and  quality  of  the  lost  goods  shall  be  proved  by  the 


492  APPENDIX  G. 

bills  of  lading',  and  should  there  be  no  l)ills  of  lading  by  the  invoices 
and  any  other  legal  proof. 

The  loss  and  damage  caused  to  the  hull  and  appurtenances  of  the 
vessel  shall  be  fixed  at  the  value  which  the  sacrificed  articles  had  at 
the  time  of  the  average. 

Art.  1112.  The  goods  saved  shall  be  valued,  after  having  been  in- 
spected and  examined,  at  the  market  price  current  in  the  j)ort  of 
discharge,  after  deducting  freight,  import  duties,  ordinary  expenses 
and  the  particular  average  which  they  have  suffered  during  the 
voyage . 

When  the  adjustment  and  distribution  of  the  general  average  have 
been  made  in  the  ship's  port  of  departure,  the  goods  saved  shall  be 
valued  at  the  market  price  at  the  time  when  they  were  put  on  board, 
the  shipping  expenses  being  added,  but  not  the  insurance  premium, 
if  any. 

In  case  the  voyage  has  been  cancelled  or  the  goods  sold  in  a  port 
which  the  ship  wa.s  compelled  to  enter  for  the  purpose  of  being 
supplied  Avith  urgent  necessaries,  the  value  of  the  goods  saved  shall 
be  fixed  at  the  market  price  at  the  place  where  the  cancellation  or 
the  sale  took  place. 

The  ship  and  its  appurtenances  shall  be  valued  according  to  the 
state  in  which  they  are  found. 

Art.  11 13.  If  the  goods  saved  are  of  a  better  quality  than  stated 
in  the  bills  of  lading,  they  shall  contribute  to  the  payment  of  the 
average  according  to  their  value. 

The  goods  lost  shall  be  contributed  for  in  this  case  at  the  price 
assigned  to  them  according  to  the  quality  stated. 

If,  on  the  other  hand,  the  quality  of  the  goods  saved  is  inferior 
to  that  stated  in  the  bills  of  lading,  they  shall  contribute  according 
to  the  value  of  the  quality  indicated. 

The  lost  goods  shall  be  contributed  for  at  the  market  price. 

Art.  1114.  Wheji  the  valuation  mentioned  in  Articles  1111  and 
1112  has  been  made,  the  experts  who  are  responsible  for  the  liqui- 
dation and  distribution  of  the  general  average  shall  make  out  three 
general  accounts:  the  first  of  the  amount  to  be  made  good,  the  second 
of  the  contributing  assets  and  the  third  of  the  distribution  of  the 
average  amongst  the  interested  parties. 

Art.  1115.  The  amount  to  be  made  good  shall  include:  — 

1.  The  expenses  which  have  been  incurred  for  the  general  benefit. 

2.  The    total  amount  of  payments  which  were  made    during    the 


THE  LA.W  OF  CHILI.  493 

voyage  or  at  the  port  of  discliarg-e  for  replacing-  articles  belougiug 
to  the  vessel,  which  were  sacrificed  for  the  general  benefit. 

,').  The  market  price  of  the  lost  goods  at  the  port  of  discharge  and 
the  diminution  in  value  of  the  damaged  goods. 

4.  The  freight  of  the  lost  goods. 

.').  The  fees  of  the  experts  charged  with  the  proof,  regulation  and 
distribution  of  the  general  average. 

The  values  indicated  in  item  3  shall  be  shown  in  this  account  as 
fixed  by  the  expert  appraisers. 

Art.    IIIG.   The  cuntributing  assets  shall  include:  — 

1.  The  market  price  of  the  saved,  lost  and  damaged  goods  at  the 
port  of  discharge. 

2.  The  value  of  the  articles  belonging  to  the  vessel  which  were 
sacrificed  at  the  time  of  the  disaster. 

,'}.  The  value  of  the  vessel  and  its  appurtenances  and  the  whole 
of  the  freight,  after  making  the  deductions  mentioned  in  No.  2  of 
Article  1092. 

In  this  account  the  freight  of  the  goods  which  were  thrown  over- 
board shall  not  be  set  out  separately. 

Art.  1117.  In  <ho  third  account  the  total  amount  of  the  average 
shall  be  distributed  proportionately  amongst  the  contributors. 

Art.  1118.  The  contributors  who  have  not  suffered  any  general 
average  shall  pay  the  contribution  assessed  upon  them  in  the  distri- 
bution account. 

Those  who  have  suffered  shall  set  off  their  credit  against  their  debit 
until  the  sum  required  is  reached,  and  they  shall  receive  or  pay  the 
difference. 

Art.  1119.  All  the  proceedings  in  the  adjustment  .shall  l)o  laid 
before  the  Court  for  approval,  the  interested  parties  or  their  legal 
agents  having  previously  been  heard. 

Art.  ]]20.  The  captain  shall  effect  the  distribution,  and  is  respon- 
sible to  the  interested  parties  for  all  damage  and  losses  which  his 
neoliffoncc  or  dclav  caiuses  them. 

Art.  1121.  The  contributors  shall  pay  their  respective  contributions 
within  seventy-two  hours,  reckoning  from  the  time  stated  in  the 
notification  of  the  judgment  approving  the  adjustment. 

If  they  do  not  pay  within  this  tiiiio,  the  captain  shall  demand  llio 
sale  of  the  goods  saved  imtil  the  necessai-y  sum  is  obtained  to  cover 
the  unpaid  contributions  and  the  costs  of  execution. 


494  APPENDIX  G. 

Art.  1122.  The  captain  shall  uot  be  obliged  to  deliver  the  goods 
to  the  contributors  until  the  contribution  has  been  paid,  unless  the 
interested  party,  when  he  receives  theia,  agrees  to  a  guarantee  for 
the  amount  of  his  contribution. 

Art.  1123.  The  owner  of  the  lost  or  damaged  goods  has  the  right 
to  claim  the  corresponding  indemnification  immediately^  from  his  under- 
writer, reserving  to  the  latter  the  right  to  demand  payment  from  all 
those  who  have  to  contribute  to  the  general  average. 


THE  LAW  OF  DENMARK.  405 


APPENDIX  H 


THE  LAW  OF  DENMAEK. 

When  the  last  editiou  of  this  work  appeared  a  draft  of  the  proposed 
Scandinavian  Maritime  Code  had  already  been  prepared,  and  Mr. 
Lowndes  was  able  to  .insert  extracts  from  it.  The  Code  has,  since 
then,  been  adopted  in  all  three  countries  concerned.  It  was  sanc- 
tioned in  Denmark  on  the  1st  of  April,  1892,  and  came  into  force 
on  the  1st  of  January,  1893.  Both  in. arrangement  and  in  substance 
the  law,  as  adopted  in  Denmark,  agrees  with  the  Swedish  Law  of  the 
12th  June,  1891,  a  translation  of  which  is  printed  infra,  Appendix  U. 
It  is,  therefore,  unnecessaxy  to  insert  here  the  Danish  text  of  the 
Law.  The  few  imimportant  differences  between  the  respective  ver- 
sions are  pointed  out  in  the  notes  to  the  Swedish  Law. 

The  editors  have  been  informed  by  Mr.  Viggo  Middelboe,  average 
adjuster,  of  Copenhagen,  that,  since  the  new  law  came  into  force  there 
have  only  been  two  decisions  of  the  Danish  Courts  on  questions  of 
general  average. 

The  earlier  one  was  a  judgment  of  the  Maritime  and  Commercial 
Court  at  Copenhagen,  24th  January,  1898.  The  facts  were  that  a 
vessel  grounded  and  was  got  off  with  the  assistance  of  salvage 
steamers.  A  general  average  statement  was  made  up,  and  the  cargo 
charged  with  its  share  of  the  general  average  expenses.  The  master 
and  first  mate  were,  however,  charged  with  having  by  their  negli- 
gence caused  the  grounding,  and  were  fined  Kr.  200  and  Kr.  100  re- 
spectively in  the  Supreme  Court.  One  of  the  cargo-owners  thereupon 
claimed  from  the  shipowners  the  return  of  the  general  average  con- 
tribution paid  by  him,  and  the  Court  decided  in  his  favour,  holding 
that  according  to  §  191  the  shipowners  had  no  right  to  compensation 
for  damage  to  the  ship  caused  by  an  accident  for  which  the  master 
was  responsible.  The  bill  of  lading  contained  the  clause  "vessel  not 
responsible  for  .  .  .  damage,"  but  Mr.  Middelboe  states  that  there 
was  no  real  negligence  clause. 

The  second  decision  was  also  one  of  the  Maritime  and  Commercial 
Court  at  Copenhagen,  30th  January,  1908.  A  vessel  had  grounded, 
and  the  engines  had  been  damaged  in  the  efforts  to  refloat  her.  After- 
Avajrds  she  was  docked  for  repairs  to  her  hull  and  machinery,  and 
the  average  adjuster,  in  accordance  witli  j)i'actice,  charged  the  whole 
of  the  docking  expenses  to  particular  average.  The  Court  held,  how- 
ever, that  under  §  206  part  of  the  docking  expenses  had  to  be  charged 
to  the  damage  to  the  machinery,  and  so  made  good  in  general  average. 


49G 


APPENDIX  I. 


APPENDIX  I. 


THE   LAW  OF   FRANCE. 

France,  as  the  country  to  which  we  owe  the  laws  of  Olerou,  the 
Giiidon,  and  the  Ordonnanee  of  Louis  XIV".,  not  to  mention  the  great 
commentaries  of  Valin,  Emerig-on,  and  Pothier,  and  as  having  thus 
taken  the  lead  in  the  principal  developments  of  maritime  law  in 
Europe,  certainly  deserved  the  foremost  place  amongst  modern  systems 
of  general  average;  though  it  may  well  be  questioned  whether  the 
present  Code,  having  undergone  little  or  no  alteration  in  the  matter 
of  general  average  since  the  time  of  the  First  Napoleon,  is  not  now 
ripe  for  revision. 

The  French  law  is  regulated  by  the  Code  de  Commerce,  of  which 
the  passages  bearing  on  the  subject  are  set  out  in  this  Appendix. 
The  editors  are  indebted  to  M.  E.  Audouin,  Secretary  of  the  Comite 
des  Assureurs  Maritimes  de  Paris,  for  the  notes  to  the  text  of  the 
law. 


TIT.  XL     DES  AVARIES. 

§  397.  Toutes  depenses  extraor- 
dinaires  faites  pour  le  navire  et 
les  marchandises,  eonjointeraent 
ou  separement, 

Tout  dommage  qui  arrive  au  na- 
vire et  aux  marchandises,  depuis 
leur  chargement  et  depart  jusqu'a 
leur  re  tour  et  dechargement, 

sont  reputes  avaries. 

§  398.  A  defaut  de  conventions 
speciales  entre  toutes  les  parties, 
les  avaries  sont  reglees  conforme- 
ment  aux  dispositions  ci-apres. 


TIT.  XL    AVERAGE. 

I  §  397.  All  extraordinary  ex- 
I  penses  incurred  on  account  of  the 
I  ship  and  the  goods,  jointly  or 
I  severally, 

'      All    damage  which  happens  to 
!  the  ship  and  the  goods,  from  the 
loading  and  departure  to  the  ar- 
rival and  discharge, 
are  accounted  average. 

§  398.  lu  the  absence  of  special 
stipulations  between  all  the  par- 
ties, average  is  to  be  governed  by 
the  following  rules  (a): — 


(«)  An  adjustment  of  general  average  is  indivisible.  If,  therefore,  one  portion  of 
the  cargo  has  been  carried  under  a  contract  incorporating  the  York- Antwerp  rules, 
and  as  regards  another  portion  the  law  of   the  French  port  of  destination  applies, 


THE  LAW  OF  FRANCE. 


497 


§  399.  Les  avaries  sont  do  deux  §  399.  Average  is  of  two  kinds: 

classes,  avaries  grosses    ou    com-  \  gross    or     general    average,    and 

munes,  et  avaries  simples  ou  parti-  ■  simple  or  particular  average, 

culieres.  i 


§  400.  Sont  avaries  communes, 

1.  Les  choses  donnees  par  com- 
position et  a  titre  de  rachat  du 
navire  et  des  marchandises ; 

2.  Celles  qui  sont  jetees  a  la 
mer; 

3.  Les  cables  ou  mats  rompus 
ou  coupes; 

4.  Les  ancres  et  autres  effets 
abandonnes  pour  le  salut  commun ; 


§  400.  To  general  averag'e  be- 
long-, 

1 .  Things  given  by  way  of  com- 
position or  ransom  for  the  ship 
and  the  goods; 

2.  Those  tlu'own  into   the  sea; 


3.  Cables  or    masts    broken    or 
cut  away  (&); 

4.  Anchors    and    other    articles 
abandoned       for       the      common 

safety  (c) ; 


Art.  398  requires  the  adjustment  for  the  whole  cargo  to  be  made  in  accordance 
with  French  law.  (Tribunal  de  Commerce  da  Havre,  4th  June,  1890  :  Coui'  d'Aix, 
28th  January,  1903.'! 

The  parties  interested  may  agree,  if  they  are  unanimous,  that  there  shall  be  no 
contribution,  but  that  each  party  shall  bear  the  loss  which  he  has  suffered  or  the 
expenses  which  he  has  incurred  for  the  common  benefit.  (Cour  d'Aix,  1862  ;  Trib. 
de  Com.  de  Marseille,  13th  November,  1883.) 

(J)  General  average  extends,  in  this  case,  not  only  to  the  sails  and  masts  cut  away 
or  voluntarily  destroyed,  and  to  all  rigging  and  tackle  they  drag  with  them,  but  also 
to  the  damage  they  may  cause  by  falling  on  deck.  (Desjardins,  Traite  de  Droit 
Commercial  Maritime,  vol.  4,  No.  989  ;  Lyon-Caen  and  Renault,  Traite  de  Droit 
Maritime,  vol.  2,  No.  910 ;  Cauvet,  Traite  de  1' Assurance  Maritime,  vol.  2,  p.  119.) 

"  When  a  mast  falls  accidentally,  it  is  generally  thrown  overboard  with  its  rigging. 
The  mast  may  have  lost  its  value,  but  the  rigging  has  retained  a  very  large  portion 
of  its  value.  Often,  also,  it  happens  that  the  tackle  in  which  the  mast  has  got 
entangled  has  to  be  cut  away.  These  things  only  occur  when  there  is  a  violent  storm 
raging,  so  as  to  break  the  mast.  At  such  times  it  is  necessary  that  there  shall  be  no 
obstruction  in  the  way  of  handling  the  ship,  and  it  is  impossible  to  detach  the  shrouds 
or  rigging  to  save  them,  so  they  must  go  overboard.  That  is  a  sacrifice  required  for 
the  common  safety,  because  the  remaining  in  a  condition  in  which  the  .ship  could  not 
easily  be  hand  ed,  might  involve  the  loss  of  everything  in  such  perilous  weather. 
Therefore,  loss  of  shrouds  and  rigging  cut  away  and  thrown  over  are  admitted  into 
general  average  upon  their  estimated  value."     (Cauvet,  vol.  2,  pp.  119,  120.) 

(c)  According  to  Art.  39  of  the  Decree  of  the  r2th  December,  IStiO,  if  the  captain 
has  been  compelled  by  a  storm  or  other  accident  to  abandon  an  anchor,  he  should,  if 
possible,  fasten  a  btioy-rope  or  buoy  to  it,  to  mark  the  place  where  it  is  to  be  found. 

L.  K  K 


498 


APPENDIX  I. 


5.  Les  dommages  occasionnes 
par  le  jet  aux  marchandises 
restees  dans  le  navire; 

6.  Les  pansement  el  uourriture 
des  inatelots  blesses  en  defendant 
le  navire,  les  loyer  et  nourriture 
des  matelots  pendant  la  detention, 
quand  le  navire  est  arrete  en  voy- 
age par  ordre  d'une  puissance,  et 
pendant  les  reparations  des  dom- 
mages volontairement  soufferts 
pour  le  salut  commun,  si  le  navire 
«st  aflErete  au  mois; 

7.  Les  frais  du  dechargement 
pour  alleger  le  navire  et  entrer 
dans  un  liavre  ou  dans  una  riviere, 
quand  le  navire  est  contraint  de 
le  faire  par  tempete  ou  par  la 
poursuite  de  I'ennemi; 

8.  Les  frais  faits  pour  remettre 
a  flot  le  navire  echoue  dans  I'in- 
tention  d'eviter  la  perte  totale  ou 
la  prise; 


5.  Damage  occasioned  by  the 
jettison  to  the  goods  which  re- 
main in  the  ship  (d); 

6 .  The  cost  of  curing  and  board- 
ing seamen  wounded  in  defending 
the  ship,  the  wages  and  victuals 
of  seamen  dui'ing-  the  detention, 
when  the  ship  is  arrested  on  her 
voyage  by  State  authority,  or  dur- 
ing the  repair  of  damage  volun- 
tarily suffered  for  the  common 
safety,  if  the  ship  is  freighted  by 
the  month  (e) ; 

7.  The  cost  of  discharging  the 
cargo  to  lighten  the  ship  and  enter 
a  harbour  or  river,  when  the  ship 
is  compelled  to  do  so  by  reason  of 
storm  or  enemy's  pursuit  (/ ) ; 


8.  Expenses  incurred  to  float  a 
ship  which  has  been  stranded  with 
the  intention  of  avoiding  total  loss 
or  capture  (g); 


If  he  neglects  this  precaution,  he  may  be  precluded  from  claiming-  contribution  for  the 
loss  of  the  anchor.  (Desjardins,  vol.  4,  No.  988 ;  Trib.  de  Com.  de  Marseille,  17th  March, 
1857.) 

[d)  It  is  agreed  that  the  same  principle  applies  generally  to  all  damage  occasioned, 
even  accidentally,  by  the  jettison  to  the  rest  of  the  cargo  or  to  the  ship.  Thus  if,  when 
the  hatches  are  opened  to  make  the  jettison,  water  penetrates  to  the  hold  and  damages 
part  of  the  cargo,  the  damage  is  general  average.  (Trib.  de  Com.  de  Marseille, 
29th  Dec.  1873.)  Similarly  damage  sustained  by  the  bulkheads  or  bulwarks  of  the 
ship  in  consequence  of  the  jettison  is  general  average.  (Desjardins,  vol.  4,  No.  986  ; 
Lyon-Caen  and  Renault,  vol.  2,  Nos.  908,  908  (2).) 

{/')  As  ships  are  usually  freighted  for  the  voyage,  and  not  by  the  month,  the  result 
is  that  by  the  French  practice,  the  wages  and  victuals  of  the  crew  during  a  detention, 
however  it  be  caused,  are  seldom  allowed  in  general  average. 

(/)  The  same  rule  applies,  under  art.  427  [infra),  to  the  loss  of  goods  placed  in  boats 
to  lighten  the  .ship,  under  the  circumstances  set  out  in  the  text. 

{ff)  The  damage  caused  both  to  ship  and  cargo  by  voluntary  stranding  is  general 
average.     (Desjardins,  vol.  4,  No.  1004  ;  Lyon-Caen  and  Renault,  vol.  2,  No.  913.) 

For  a  long  time  it  was  considered  that  by  reason  of  the  wording  of  art.  400  (8), 
which  only  mentions  voluntary  stranding-,  the  cost  of  refloating  a  shij:)  stranded  acci- 
dentally was  not  general  average.     Now,   however,  both  the  Courts  and  the  text- 


THE  LAW  OF  FRANCE. 


499 


Et,  en  g-eneral,  les  dommages 
soufferts  volontaireraent  et  les  de- 
penses  faites  d'apres  deliberations 
motivees,  pour  le  bien  et  salut 
commun  du  navire  et  des  marchan- 
dises,  depuis  leur  chargement  et 
depart  jusqu'a  leur  retour  et  de- 
chargement. 


And,  in  general,  damage  volun- 
tarily sustained  and  expenses  in- 
curred after  express  deliberation, 
for  the  common  good  and  safety 
of  the  ship  and  cargo,  from  their 
loading  and  departure  to  their 
arrival  and  discharge  (h) . 


writers  generally  take  the  contrary  view,  at  any  rate  when  in  consequence  of  the 
stranding  the  ship  and  cargo  have  been  placed  in  a  position  of  danger.  (Trib.  de  Com. 
de  Marseille,  r2th  May,  1879  ;  Cour  d'Aix,  6th  Aug.  189H  ;  Lyon-Caen  and  Eenault, 
vol.  2,  No.  925.) 

(A)  The  general  language  of  this  paragraph  shows  that  the  instances  of  general 
average  contained  in  the  preceding  paragraphs  are  not  exhaustive.  It  is  this  final 
provision  of  Art.  400  which  governs  the  solution  of  the  numerous  questions  which 
are  not  specifically  dealt  with  in  the  Article  ;  and  from  it  the  conclusion  has  been 
drawn  that  by  the  law  of  France  three  conditions  are  essential  to  the  allowance  of  a 
loss  or  expense  as  general  average.     These  conditions  are  the  following  :  — 

(1)    Voluntary  act  of  the  captain. 

The  act  is  voluntary  even  when  the  ship  and  cargo  are  in  such  danger  that,  without 
the  sacrifice,  both  would  inevitably  perish.  Otherwise  the  singular  result  would  follow 
that  contribution  would  not  be  allowed  in  those  cases  where  most  of  all  the  sacrifice  is 
justified  by  the  magnitude  of  the  peril.     (Cour  de  Eennes,  28th  Dec.  1863.) 

Must  the  voluntary  act  of  the  captain  necessarily  be  preceded  by  a  consultation  with 
the  crew  'i  The  text  of  this  paragraph  seems  to  requii-e  it.  It  is  now,  however, 
decided  that  the  preliminary  consultation  is  not  an  essential  condition  of  general 
average,  but  only  a  means  of  proof  for  which  other  proof  can  be  substituted,  e.;/., 
entries  in  the  sea-protest.     (Cour  de  Cassation,  r2th  June,  1894.) 

(2)    Coinmitnity  of  interest  between  the  ship  and  the  cargo. 

If,  therefore,  the  measure  has  been  adopted  exclusively  for  the  sake  of  the  ship,  and 
•only  incidentally  benefits  the  cargo,  the  case  is  not  one  of  general  average.  (Trib.  de 
Com.  du  Havre,  6th  March,  1882.) 

The  community  of  interest  between  the  ship  and  the  cirgo  does  not  cease  to  exist 
when,  in  the  course  of  the  voyage,  a  temporary  separation  takes  place  in  consequence 
of  the  occurrence  which  caused  the  general  average  loss.  Thus,  the  transhipment  of 
the  cargo  in  consequence  of  a  stranding  does  not,  when  the  contract  of  afi'reightment 
has  not  been  cancelled,  release  the  cargo  from  the  obligation  of  contributing  to  the 
cost  of  refloating  the  ship  after  the  transhipment.  (Trib.  do  Com.  de  Marseille, 
Gth  July,  1905.) 

For  a  long  time  it  was  considered  that,  in  addition  to  a  common  interest,  there  had 
to  be  an  imminent  danger  before  the  right  to  contribution  came  into  existence.  This 
doctrine,  however,  is  no  longer  accepted  ;  and  the  weight  of  authority  supports  the 
view  that  it  suffices  that  the  sacrifice  was  made  for  the  common  safety  imperilled  by 
an  existing  danger,  even  though  not  an  imminent  one.  (De.>*jardins,  vol.  4,  No.  97G  ; 
Xiyon-Caen  and  Renault,  vol.  2,  No.  882  :  Cour  d'Aix,  19th  Aug.  1874.) 

K  K  2 


500  APPENDIX  I. 

§  401.    Les    avaries    communes  '       §  401.  General  average  is  borne 
sont  supportees  par  les  marchan-     by  the  goods  and  by  the  half  of  the 


dises  et  par  la  moitie  du  navire  et 
du  fret,  au  marc  le  franc  de  la 
valeur. 


ship  and  of    the  freight,  rateably 
upon  their  values  (/). 


§  402 .  Le  prix  des  marchandises  §  402 .   The  value  of  the  goods 

est  etabli  par  leixr  valeur  au  lieu  is  determined  by  their  price  at  the 

du  dechargement.  .  place  of  discharge  (A:) . 

§   403.  Sont     avaries     particu-  '       §   403.   To    particular     average 


lieres, 

1 .  Le  dommage  arrive  aux  mar- 
chandises par  leiu'  vice  propre, 
par  tempete,  prise,  naufrage  ou 
echouement;  '  stranding  (m) ; 


belong, 

1.  Damage  sustained  by  the 
goods  from  vice  propre  (I),  from 
storm,      captuxe,     shipwreck,      or 


(3)  Success. 

This  condition  is  implied  in  Art.  423,  infra,  whicli  states  that  *'  if  the  jettison  does 
not  save  the  ship,  there  shall  be  no  contribution."  It  is  not,  however,  necessary  to 
satisfy  this  condition  that  the  sacrifice  shaU  have  saved  both  the  ship  and  the  cargo. 
Thus,  the  sacrifice  of  the  whole  ship  will  be  general  average  if  it  has  saved  the  whole 
or  even  part  of  the  cargo,  and  vice  versa.  (Desjardins,  vol.  4,  No.  977;  Lyon-Caen  and 
Renault,  vol.  2,  No.  887.)     [See  editors'  addition  to  note  (e),  p.  507.] 

(*)  The  French  Courts  are  divided  on  the  question  whether  the  shipowner  or  the 
cargo-owner  is  liable  to  pay  the  contribution  of  the  freight  to  general  average,  when 
the  bill  of  lading  contains  a  stipulation  that  the  freight  is  payable  in  any  event  (ship 
lost  or  not  lost),  and  cannot  be  recovered  back.  According  to  several  decisions,  the 
cargo-owner  must  contribute  on  the  total  amount  of  the  freight,  as  in  consequence  of 
the  clause  in  question  it  is  at  his  risk.  (Trib.  de  Com.  de  Marseille,  29th  Dec.  1897  ; 
Cour  de  Rouen,  18th  Ap.  1890.)  According  to  other  decisions,  even  under  such  a  bill 
of  lading  the  shipowner  must  contribute  in  respect  of  half  the  freight,  the  Legislature 
having  intended  to  make  the  contribution  of  the  ship  and  freight  an  indi\'isible  whole, 
so  that  the  contributing  interests  of  which  it  is  composed  cannot  be  separated.  (Trib. 
de  Com.  du  Havre,  llth  July,  1882  ;  Com-  de  Bordeaux,  4th  Ap.  1892.)  The  practice 
of  the  French  average  adjusters  on  this  point  being  also  unsettled,  this  important 
question  was  recently  submitted  to  the  Cour  de  Cassation,  whose  judgment  has  not  yet 
been  delivered. 

ik)  But  all  the  charges  must  be  deducted  from  the  gross  value  of  the  goods,  which 
their  owner  would  not  have  had  to  pay  if  they  had  not  been  saved,  i.e.,  the  landing 
expenses,  customs  duties  and,  on  principle  (see  note  (»),  supra),  the  freight.  (Des- 
jardins, vol.  4,  No.  1064 ;  Lyon-Caen  and  Renault,  vol.  2,  No.  950.) 

[I)  Vice  propre  in  goods  is  an  inherent  principle  of  deterioration,  e.g.,  the  heating  of 
grain,  leakage  of  liquids,  fermentation  of  fruit.  In  ships  vice  propre  is  the  result  either 
of  age  or  of  the  bad  quality  of  the  materials.  (Desjardins,  vol.  4,  Nos.  1024,  1025  ; 
Lyon-Caen  and  Renault,  vol.  2,  No.  989  ;  Cour  de  Cassation,  18th  Oct.  1892.) 

(w)  This  only  refers  to  accidental  stranding ;  as  regards  voluntary  stranding,  see 
note  {g),  supra: 


'JIIE  LAW  OF  FRANCE. 


501 


2.    Les 
sauver ; 


frais     fails     pour     les 


.'}.  La  perte  des  cables,  ancres, 
voiles,  mats,  cordages,  causec  par 
teinpete  ou  autre  accident  de  iner; 

Les  depeuses  resultant  de  toutes 
relaches  occasionnees  soit  par  la 
perte  fortuite  de  ces  objets,  soit  par 
le  besoin  d'avitaillement,  soit  par 
voie  d'eau  a  reparer. 

4.  La  nourriture  et  le  lover  des 
niatelots  pendant  la  detention 
quand  le  navire  est  arrete  en 
voyage  par  ordre  d'une  puissance, 
et  pendant  les  reparations  qu'on 
est  oblige  d'y  faire,  si  le  navire 
est  affrete  au  voyage; 

.).  La  nourriture  et  le  loyer  des 
niatelots  peiidant  la  quarantaine, 
(|ue  le  navire  soit  loue  au  voyage 
ou  au  mois; 

Et,  en  general,  les  dcpenses 
faites  et  le  dommage  soufi'ert  pour 
le  navire  seul,  ou  pour  les  mar- 
chandises  seules,  depuis  leur 
chargement  et  depart  jusqn'a 
leur  retour  et  decliargement . 


2.  Expense  incurred  in  saving 
them  (n) ; 

3.  The  loss  of  cables,  anchors, 
sails,  masts,  or  cordag-e,  caused  b}' 
tempest  or  other  accident  of  the 
sea; 

Expenses  resulting-  from  the  put- 
ting into  a  port  of  refuge,  if  occa- 
sioned either  by  the  accidental  loss 
of  such  articles,  or  by  the  need  of 
victualling,  or  to  repair  a  leak  (  o) . 

4.  The  wages  and  provisions  of 
the  crew  dui-ing  the  detention, 
when  the  ship  is  arrested  on  the 
voyage  by  any  State  authority, 
and  during'  repairs  Avhich  have  to 
be  made  there,  if  the  ship  is 
freighted  by  the  voyage: 

5.  The  wages  and  provisious  of 
the  seamen  diu'ing  a  quarantine, 
whether  the  ship  is  freighted  by 
the  voyage  or  by  the  month; 

And,  in  general,  expenses  in- 
cm^red  for,  and  damag-e  suffered 
by,  the  ship  alone,  or  the  goods 
alone,  from  their  loading*  and  de- 
partui'e  to  their  arrival  and  dis- 
charge {jj). 


(«)  This  only  relates  to  expenses  incurred  solely  to  save  the  goods,  i.e.,  when  the 
ship  is  lost  or  deemed  to  be  lost,  and  there  is  no  longer  a  community  of  interest  between 
it  and  the  cargo.     (Cour  de  Cassation,  14th  March,  1904.) 

(o)  These  expenses  are  obviously  only  particular  average  when  the  occurrences 
enumerated  in  the  text  (loss  of  cables,  &c.,  need  of  victualling,  springing  a  leak), 
which  have  made  it  necessary  to  put  into  a  port  of  refuge,  have  not  imperilled  the 
safety  of  the  ship  and  cargo  ;  otherwise  the  expenses  are  general  average  by  virtue  of 
the  concluding  paragraph  of  Art.  400.  (Lyon-Caen  and  Renault,  vol.  2,  No.  920  ; 
Cauvet,  No.  365  et  seq.  ;  Cour  de  Cassation,  10th  Aug.  1880,  and  29th  March,  1892.) 

( /;)  It  is  a  principle  of  general  application  that  a  quarantine  imposed  by  the  sanitary 
authority  is  an  incident  of  navigation,  and  has  none  of  the  essential  characteristics  of 
general  average.  Therefore  the  shipowner  must  bear  alone  the  expenses  which  the 
quarantine  entails.     (Trib.  dc  Com.  du  Havre,  nth  Nov.  1889.) 

The  cargo-owner  must  bear  expenses  incuiTed  for  the  goods  alone,  e.g.,  the  expense 
of  transhipment,  even  if  the  transhipment  was  prohibited  by  a  clause  in  the  bill  of 
lading.     (Trib.  de  Com.  du  Havre,  7th  Feb.  1893.) 


502 


APPENDIX  I. 


§  404.  Les  avaries  particulieres 
sont  supportees  et  payees  par  le 
proprietaire  de  la  chose  qui  a  es- 
suye  le  dommage  ou  occasionne  la 
depense. 

§  405.  Les  dommages  arrives 
aux  marchandises,  faute  par  le 
capitaine  d'avoir  bien  ferme  les 
ecoutilles,  amarre  le  navire,  fourni 
de  bons  guindages,  et  par  tous 
autres  accidents  provenant  de  la 
negligence  du  capitaine  ou  de 
I'equipage,  sont  egalement  des 
avaries  particulieres,  supportees 
par  le  proprietaire  des  marchan- 
dises, mais  pour  lesquelles  il  a  son 
recours  contre  le  capitaine,  le 
navire,  et  le  fret. 

§  406.  Les  lamanages,  touages, 
pilotages,  pour  entrer  dans  les 
havres  ou  rivieres,  ou  pour  en 
sortir,  les  droits  de  conges,  visites, 
rapports,  tonnes,  balises,  ancrages, 
et  autres  droits  de  navigation,  ne 
sont  point  avaries;  mais  ils  sont 
de  simples  frais  a  la  charge  du 
navire. 

TIT.  XII.   DU  JET  ET  DE  LA 
CONTRIBUTION. 

§  410.  Si,  par  tempete  ou  par  la 
chasse  de  Teunemi,  le  capitaine  se 
eroit  oblige,  pour  le  salut  du 
navire,  de  jeter  en  mer  une  partie 
de  son  chargement,  de  couper  ses 


§  404.  Particular  average  is 
borne  and  paid  by  the  proprietor 
of  the  thing  which  has  sustained 
the  damage  or  occasioned  the  ex- 
pense . 

§  405.  Damage  done  to  the  mer- 
chandise in  consequence  of  the 
master  having  neglected  to  close 
the  hatches,  to  make  the  ship  pro- 
perly fast,  or  to  provide  proper 
implements  for  hoisting,  and  of  all 
other  misfortxmes  caused  by  care- 
lessness of  the  master  or  crew,  is 
particular  average,  for  which  the 
shipper  has  his  recourse  against 
the  master,  the  ship,  and  the 
freight  (g). 


§  406.  Coasting  and  harbour 
pilotage,  or  towage,  in  entering 
harbours  or  rivers,  or  quitting 
them,  dues  of  entry,  clearance, 
visas,  surveys,  tonnage  or  light 
dues,  anchorage,  and  other  dues  of 
navigation,  are  not  average;  they 
are  simple  expenses  at  the  charge 
of  the  ship. 

TIT.  XII.    OF  JETTISON 
AND  CONTRIBUTION. 

§  410.  If,  by  reason  of  storm  or 
enemy's  pursuit,  the  captain  deems 
himself  obliged,  for  the  safety  of 
the  ship,  to  cast  into  the  sea  a  por- 
tion of  his  cargo,  to  cut  away  his 


{q)  It  has  been  decided  that  this  provision  extends  to  all  damage  and  expenditures, 
even  though  done  or  incun-ed  for  the  common  safety  of  ship  and  cargo,  when  due 
to  the  default  of  the  captain  (Cour  de  Cassation,  16th  Nov.  1881,  and  6th  June,  1882), 
unless  by  a  special  clause  in  the  charter-party  or  bill  of  lading  the  shipowner  in 
exempted  from  liability  for  such  default.     (Cour  de  Cassation,  12th  June,  1894.) 


THE  LAW  OF  FRANCE. 


oO'l 


mats  ou  d'abandouner  ses  aneres, 
il  prend  I'avis  des  interesses  au 
chargement  qui  se  trouvent  dans 
le  vaisseau,  et  des  principaux  de 
I'equipage. 

S'il  y  a  diversite  d'avis,  celui  du 
capitaine  et  des  principaux  de 
I'equipage  est  suivi. 

§  411.  Les  choses  les  moins  ne- 
cessaires,  les  plus  pesantes  et  de 
moindi-e  prix,  sout  jetees  les  pre- 
mieres, et  ensuite  les  marchandises 
du  premier  pont  au  choix  du  capi- 
taine, et  par  I'avis  des  principaux 
de  I'equipage. 

§  412.  Le  capitaine  est  tenu  de 
rediger  par  ecrit  la  deliberation, 
aussitot  qu'il  en  a  les  moyens. 

La  deliberation  exprime,  les 
motifs  qui  ont  determine  le  jet,  les 
objets  jetes  ou  endommages:  elle 
presente  la  signature  des  deli- 
berans,  ou  les  motifs  de  leur  refus 
de  signer:  elle  est  transcrite  sur 
le  registre. 


masts,  or  to  part  with  his  anchors, 
he  is  to  take  the  advice  of  those 
interested  in  the  cargo  who  may 
be  on  board,  and  of  the  principal 
persons  of  his  crew. 

If  there  is  a  difference  of 
opinion,  that  of  the  captain  and 
the  principal  persons  of  the  crew 
is  to  be  followed  (r). 

§  411.  Those  things  which  are 
least  necessary,  heaviest  and  least 
costly,  are  to  be  thrown  over 
first  (s),  and  afterwards  the  cargo 
from  below  deck  at  the  choice  of 
the  captain  with  the  advice  of  tlie 
principal  jDcrsons  of  the  crew. 

§  412.  The  captain  is  bound  to 
draw  up  a  written  report  of  the  de- 
liberation, as  soon  as  practicable. 

This  report  is  to  set  forth  the 
motives  which  have  determined  the 
jettison,  and  the  articles  jettisoned 
or  damaged;  and  is  to  be  followed 
by  the  signatures  of  those  who 
deliberated,  or  their  reasons  for 
refusing  to  sign;  and  must  be 
entered  in  the  ship's  log-book. 


(r)  The  provisions  of  Art.  410  must  be  construed  subject  to  the  general  prinuiples  of 
the  law  of  general  average.  Thus  it  has  been  held  that  jettison  is  not  general  average 
if  the  act  was  not  done  for  the  common  safety,  e.f/.,  when  goods  have  been  thrown 
overboard  which  infected  other  goods  in  contact  with  them,  but  did  not  in  any  way 
endanger  the  j^afety  of  the  ship.     (Trib.  de  Com.  de  Marseille,  'iOth  July,  1882.) 

The  consultation  with  the  crew,  prescribed  by  this  Article,  is  not  obligator}'  when 
the  urgency  of  the  case  renders  it  impracticable  (Trib.  de  Com.  du  Havre,  '28th  May, 
1883) ;  on  the  other  hand,  when  this  consultation  has  taken  place,  it  cannot  transform 
expenses  {cff.,  of  putting  into  a  port  of  refuge)  which  have  not  been  incurred  for  the 
common  safety  of  ship  and  cargo,  into  general  average.  (Cour  de  Cassation,  8th  June, 
1891.) 

(.s)  This  regvilation  must  be  followed  as  far  as  possible,  but  is  not  rigorously  binding. 
Compliance  therewith  may  be  prevented  by  the  confusion  due  to  an  imminent  peril,  or 
by  the  circumstances  of  the  case.  Thus,  the  captain  canuot  be  expected  to  jettison 
the  heaviest  goods  when  they  are  at  the  bottom  of  the  hold.  (Lyon-Caen  and  Renault, 
vol.  2,  No.  903.) 


504 


APPENDIX  I. 


§  413.  Au  premier  j)ort  ou  le 
navire  abordera,  le  capitaine  est 
tenu,  dans  les  vingt-quatre  heures 
de  son  arrivee,  d'afRrraer  les  faits 
contenus  dans  la  deliberation 
transcrite  sur  le  registre. 


§  414.  L'etat  des  pertes  et  dom- 
mages  est  fait  dans  le  lieu  du  de- 
chargement  du  navire,  a  la  dili- 
gence du  capitaine  et  par  experts. 

Les  experts  sont  nommes  par  le 
Tribunal  de  Commerce,  si  Ic  de- 
chargement  se  fait  dans  un  port 
frangais.  Dans  les  lieux  oii  il  n'y 
a  pas  de  Tribunal  de  Commerce, 
les  experts  sont  nommes  par  le 
Juge  de  Paix.  lis  sont  nommes 
par  le  consul  de  France,  et,  a  son 
defaut,  par  le  magistrat  du  lieu,  si 
le  decharge  se  fait  dans  un  port 
etranger.  Les  experts  pre  tent  ser- 
ment  avant  d'operer. 

§  415.  Les  marchaudises  jotees 
sont  estimees  suivant  le  prix 
courant  du  lieu  du  dechargement ; 
leur  qualite  est  constatee  par  la 
production  des  connaissements,  et 
des  factures  s'il  y  en  a. 


§  413.  At  the  first  port  where 
the  ship  shall  touch,  the  captain  is 
bound,  .within  twenty-four  hours 
of  his  arrival,  to  make  affirmation 
of  the  facts  contained  in  the  de- 
liberation entered  upon  the  log- 
book. 

§  414.  The  statement  of  the  loss 
and  damage  is  to  be  made  in  the 
place  of  the  ship's  discharge,  under 
the  care  of  the  captain,  and  by 
experts. 

The  experts  are  named  by  the 
Tribunal  of  Commerce,  if  the  dis- 
charge is  made  in  a  French  port. 
Li  places  where  there  is  no  Tri- 
bunal of  Commerce  the  exports  are 
nominated  by  the  Juge  de  Paix. 
If  the  discharge  is  made  in  a 
foreign  port  (t)  they  are  named  by 
the  French  consul,  and  in  his  ab- 
sence by  the  magistrate  of  the 
place.  The  experts  are  sworn 
before  they  commence  their  work. 

§  415.  The  .goods  jettisoned  are 
to  be  valued  according  to  their 
market  price  at  the  place  of  dis- 
charge (u) ;  their  qualit}'  is  to  be 
verified  by  the  production  of  bills 
of  lading,  and  of  invoices  if  there 
are  any. 


{t)  When  some  only  of  the  parties  intere.sted  in  the  adjustment  of  the  general 
average  are  French,  the  parties  who  are  not  French  can  obviously  not  be  compelled, 
except  under  the  terms  of  a  diplomatic  convention,  to  abide  by  the  nomination  of  the 
French  consul.  In  this  case  application  must  be  made  to  the  local  magistrate.  (Des- 
jardins,  vol.  4,  No.  965  ;  Lyon-Caen  and  Renault,  vol.  2,  No.  970.) 

(u)  No  deduction  is  made  on  account  of  freight,  but  the  expense  of  unloading  and 
the  Customs  duties  are  deducted.  (Desjardins,  vol.  4,  No.  1052;  Lyon-Caen  and 
Renault,  vol.  2,  No.  937.)  [The  reason  why  no  deduction  is  made  on  account  of 
freight  is  that,  according  to  Art.  301  {infra,  p.  510),  the  captain  receives  freight  on 
goods  sacrificed.     (Lyon-Caen  and  Renault,  ubi  supra.) — Editors.] 


THE  LAW  OF  FRANCE. 


505 


§  416.  Les  experts  nommes  en 
vertu  de  I'article  precedent  font  la 
repartition  des  pertes  et  dom- 
mages.  La  repartition  est  rendue 
executoire  par  I'liomolog-ation  du 
tribiuial.  Dans  les  ports  etrangers, 
la  repartition  est  rendue  execu- 
toire par  le  consul  de  France,  ou 
a  son  defaut,  par  tout  tribunal 
competent  sur  les  lieux. 

§  417.  La  repartition  pour  le 
paiement  des  pertes  ct  dommages 
est  faite  sur  les  effets  jetes  et 
sauves,  et  sur  nioitie  du  navire  et 
du  fret,  a  proportion  de  leur  valeur 
au  lieu  du  dechargement. 


§  418.  Si  la  qualite  des  niar- 
chandises  a  ete  deguisee  par  le  con- 
naissement,  et  qu  elles  se  trouvent 
d'une  plus  grande  valeur,  elles  con- 
tribuent  sur  le  pied  de  leur  esti- 
mation, si  elles  sont  sauvees;  elles 


§  410.  The  experts  nominated  in 
virtue  of  the  preceding  article 
make  the  statement  of  the  losses 
and  averages.  The  statement  is 
rendered  executory  by  the  official 
confirmation  of  the  tribunal.  In 
foreign  ports  the  statement  is  ren- 
dered executory  by  the  French 
consul,  or,  in  his  absence,  by  any 
competent  tribunal  on  the  spot. 

§  417.  The  apportionment  for 
the  payment  of  the  loss  and 
damage  is  to  be  made  upon  the 
goods  jettisoned  and  saved  (x), 
and  upon  the  half  of  the  ship  (ij} 
and  of  the  freight  (z),  in  propor- 
tion to  their  values  at  the  place 
of  discharge  (a) . 

§  418.  If  the  quality  of  the 
goods  has  been  disguised  in  the 
bill  of  lading,  and  they  possess  a 
greater  value,  they  contribute  if 
they  are  saved  according  to  their 
real  worth.     Tliey  arc  paid  for  ac- 


(x)  See  note  (k)  to  Art.  402,  anfe,  p.  500,  as  to  the  values  upon  which  goods 
contribute. 

(y)  If  the  damage  to  the  ship  has  been  repaired  iu  the  course  of  the  voyage,  the 
cost  of  the  repairs  must  be  deducted  from  her  value  at  the  place  of  discharge.  (Cour 
de  Kouen,  17th  July,  1885.) 

[z]  "The  freight,  from  half  of  which  contribution  is  drawn,  is  the  gross  freight, 
as  agreed  on  in  the  charter-parties  and  bills  of  lading.  It  is  true  that  to  estimate  the 
actual  benefit  the  shipowner  derives  from  the  freight,  there  should  be  deducted  from  it 
any  expenses  incurred  after  the  general  average,  which  would  diminish  the  profit 
resulting  from  the  average.  But  the  Code  makes  this  deduction  already  with  a  view 
to  these  expenses  by  dividing  the  freight,  and  making  only  one-half  contributory." 
(Droz.  vol.  2,  p.  146.) 

With  respect  to  the  contribution  of  freight  paid  in  advance,  or  stipulated  as 
payable  in  any  event,  see  note  (i),  supra.  As  regards  passenger  steamers,  the  passage 
money  ought  to  be  treated  in  the  same  way  as  freight,  and  therefore  made  to  contribute 
on  one-half  of  its  gross  amount.     (Lyon-Caeu  &  Renault,  vol.  2,  No.  956.) 

{a)  Everything  which  is  contributed  for  in  consequence  of  a  general  average  sacrifice, 
whether  of  ship,  freight,  or  cargo,  must  also  contribute.  (Desjardins,  vol.4,  No.  1061.) 
Particular  average,  however,  is  always  deducted  from  the  contributory  values.  (Cour 
de  Rouen,  18th  April,  1890.) 


506 


APPENDIX  I. 


sont  payees  d'apres  la  qualite  do- 
sig-nee  par  le  connaissement,  si 
elles  sont  perdues.  Si  les  mar- 
chandises  declarees  sont  d'une 
qualite  inferieure  a  celle  qui  est 
indiquee  par  le  connaissement, 
elles  contribuent  dapres  la  qualite 
indiquee  par  le  connaissement  si 
elles  sont  sauvees.  Elles  sont 
payees  sur  le  pied  de  leur  valeur  si 
elles  sont  jetees  ou  endommag-ees. 

§  419.  Les  munitions  de  guerre 
et  de  bouche,  et  les  hardes  des  gens 
de  I'equipage,  ne  contribuent  point 
au  jet;  la  valeur  de  celles  qui 
auront  ete  jetees  sera  payee  par 
contribution  sur  tons  les  aiitres 
eflets. 

§  420.  Les  eii'ets  dont  il  n'y  a 
pas  de  connaissement  ou  declara- 
tion du  capitaine,  ne  sont  pas 
payes  s'ils  sont  jetes;  ils  contri- 
buent s'ils  sont  sauves. 

§  421.  Les  effets  charges  sur  le 
tillac  du  navire  contribuent  s'ils 
sont  sauves. 

S'ils  sont  jetes,  ou  cndommages 
par  le  jet,  le  proprietaire  n'est 
point  admis  a  former  une  demande 
en  contribution;  il  ne  peut  exercer 
son  recours  que  contre  le  capi- 
taine. 


cording  to  the  value  designated  by 
the  bill  of  lading  if  they  are  lost. 
If  the  goods  show  a  value  inferior 
to  that  indicated  in  the  bill  of 
lading,  they  contribute  according 
to  the  value  indicated  in  the  bill 
of  lading  if  they  are  saved.  They 
are  paid  for  according  to  their 
value  if  they  are  jettisoned  or 
damaged . 

§  419.  Ammunition  of  war,  pro- 
visions, and  the  personal  effects  of 
the  crew,  do  not  contribute  to  the 
jettison;  but,  if  jettisoned,  their 
value  is  to  be  paid  by  contribution 
over  all  the  other  property  (fc"). 

§  420.  Goods  for  which  there  is 
no  bill  of  lading  or  declaration  by 
the  captain  are  not  to  be  paid  for 
if  jettisoned,  but  must  contribute 
if  saved  (c). 

§  421.  Goods  stowed  ui)on  the- 
deck  of  the  ship  contribute  if  they 
are  saved. 

If  they  are  jettisoned,  or  dam- 
aged by  the  jettison,  the  owner  of 
them  is  not  allowed  to  make  a  claim 
for  contribution;  his  only  recourse 
is   against   the   captain  ((?i. 


{b)  There  is,  however,  a  well-established  usage  to  exempt  passengers'  baggage  from 
contribution.      (Lyon-Caen  &  Renault,  vol.  2,  No.  946.     See  infra,  p.  517.) 

(c)  Goods  shipped  without  bill  of  lading  now  inchide  parcels  and  securities  carried  by 
post.  The  general  practice,  which  is  hardly  justifiable  in  theory,  is  to  exempt  them 
from  contribution,  as  well  as  to  disallow  contribution  for  their  sacrifice. 

{d)  The  text- writers  and  the  Courts  agree  in  laying  down  the  rule  that  the  latter 
provision  of  this  article  does  not  apply  to  short  coasting  voyages.  (Desjardins,  vol.  4, 
No.  1022  ;  Cour  de  Cassation,  25th  July,  1892.)  On  the  other  hand,  there  is  no 
exception  to  the  provision  in  the  case  of  long  coasting  and  oversea  voyages,  even  when 
the  goods  have  been  laden  on  deck  with  the  express  consent  of  the  shipper.  (Desjardins,. 
vol.  4.  Xo.  1022.) 


THE  LAW  OF  FRANCE. 


oo: 


§  422.  II  u"y  a  lieu  a  coutiibu- 
tiou  pour  raison  du  dommage 
arrive  au  navire,  que  dans  le  cas 
ou  le  dommage  a  ete  fait  pour 
faciliter  le  jet. 


§  423.  Si  le  jet  ne  sauve  pas  le 
navire,  il  n'y  a  lieu  a  aucune  con- 
tribution . 

Les  marehandises  sauvees  ne 
sont  point  tenues  du  paiement  ni 
du  dedommagement  de  celles  qui 
ont  ete  jetees  ou  endommagees. 

§  424.  Si  le  jet  sauve  le  navire, 
et  si  le  navire,  en  continuant  sa 
route,  vient  a  se  perdre, 

Les  marehandises  sauvees  con- 
tribuent  au  jet  sur  le  pied  de  leur 
valeur  en  I'etat  ou  ils  se  trouvent, 
deduction  faite  des  frais  de  sauve- 
tage. 


§  422.  There  is  no  ground  for 
contribution  on  account  of  damage 
suffered  by  the  ship,  except  in  the 
case  where  the  damage  has  been 
done  in  order  to  facilitate  the  jet- 
tison. 

§  423.  If  the  jettison  does  not 
save  the  ship,  there  shall  be  no 
contribution  (e). 

The  goods  saved  are  not  liable 
for  the  value  or  for  the  deteriora- 
tion of  those  jettisoned  or  dam- 
aged (/). 

§  424.  If  the  jettison  saves  the 
ship,  and  if  the  ship,  continuing 
her  voyage,  is  afterwards  lost, 

The  goods  saved  contribute  to 
the  jettison  on  the  footing  of  their 
value  in  the  state  in  which  they 
may  be,  deduction  being  made  of 
the  cost  of  salvage  (gr). 


{e)  The  law  lays  down  in  this  article,  with  reference  to  jettison,  a  principle  of 
general  application  to  all  sacrifices  for  the  common  safety,  ^^z.,  that  the  sacrifice,  in 
order  to  give  rise  to  contribution,  must  have  had  a  successful  result.  (Desjardins, 
vol.  4,  No.  978  ;  Lyon-Caen  &  Renault,  vol.  2,  Nos.  886,  887.) 

[On  a  literal  construction  of  this  article,  it  might  be  thought  that  if  by  reason  of 
the  jettison  the  cargo  was  saved,  though  the  ship  perished,  there  is  no  right  of  con- 
tribution. It  seems,  however,  that  this  construction  is  not  adopted.  (See  antr, 
p.  500,  note  (k).)  Professors  Lyon-Caen  and  Renault  say,  with  reference  to  this  article  : 
"  When  the  ship  has  not  been  saved,  it  is  immaterial  that  the  goods  have  been  saved, 
if  their  preservation  has  been  brought  about  by  special  efforts  or  by  chance,  and  not  by 
the  jettison  which  has  lightened  the  ship."  And  then,  after  quoting  the  second  para- 
graph of  the  article,  they  add  :  "  This  would  not  hold  good  if  the  jettison,  though  it 
did  not  save  the  ship,  contributed  to  the  preservation  of  part  of  the  cargo.  Though 
the  ship  be  lost,  the  cargo,  at  any  rate,  must  contribute."  (Lyon-Caen  &  Renault, 
vol.  2,  No.  887.)— Editoes.] 

(/)  See  the  Editors'  addition  to  note  (e),  suprn. 

{g)  In  the  case  treated  of  in  this  article,  the  property  liable  to  contribute  comprises 
the  wreck  of  the  ship  estimated  at  its  value  after  its  loss  ;  the  freight  owing  to  the 
shipowner,  both  in  respect  of  the  goods  sacrificed  and  those  which  have  survived  the 
final  casualty  ;  the  goods  sacrificed  ;  and  the  goods  which  have  ultimately  been  saved, 
the  latter  estimated  at  their  value  after  the  final  casualty,  deducting  the  cost  of  salving 
them.     (Cour  de  Cassation,  2nd  April,  1884.) 


508 


APPENDIX  I. 


§  425.  Les  effets  jetes  aie  contri- 
buent  en  aucun  cas  au  paiemeut 
des  dommages  arrives  depuis  le  jet 
aux  inarehandises  sauvees. 

Le.s  inarehandises  ne  contribuent 
point  au  paiement  du  navire  perdu, 
ou  rckluit  a  I'etat  d'innavigabilite. 


§  425.  The  goods  jettisoned  do 
not  in  any  case  contribute  to  the 
payment  of  damage  suffered  after 
the  jettison  by  the  goods  Tvhich  are 
saved. 

The  goods  do  not  contribute  to 
the  payment  for  a  ship  which  is 
lost  or  reduced  to  a  state  of  in- 
navigability  (h) . 


§  426.  Si,  eii  vertu  d'une  delibe-  !  §  426.  If,  in  virtue  of  a  delibera- 
ration,  le  navire  a  ete  ouvert  pour  tion,  the  ship  has  been  cut  open  in 
en  extraire  les  marchandises,  ellcs  order  to  take  out  the  goods,  these 
contribuent    a     la    reparation    du     shall  contribute   to  the  repair  of 


dommage  cause  au  navire. 

§  427.  En  cas  de  parte  des  mar- 
chandises mises  dans  des  barques 
pour  alleger  le  navire  entrant  dans 
un  port  ou  une  riviere,  la  reparti- 
tion en  est  faite  sur  le  navire  et 
son  chargement  en  entier. 

Si  le  navire  perit  avec  le  reste  de 
son  chargement,  il  n'est  fait  aucune 
repartition  sur  les  marchandises 
mises  dans  les  alleges,  quoiqu'elles 
arrivent  a  bon  port. 

§  428.  Dans  tous  les  cas  ci-dessus 
exprimes,  le  capitaine  et  I'equipage 
sent  privilegies  sur  les  marchan- 
dises ou  le  prix  en  provenant  pour 
le  montant  de  la  contribution. 

§  429.  Si,  depuis  la  repartition, 
les  effets  jetes  sent  recouvres  par 
les  proprietaircs,  ils  sont  tenus  de 
rapporter  au  capitaine  et  aux  inte- 
resses  ce  qu'ils  ont  regu  dans  la 
contribution,  deduction    faite  des 


the  damage  caused  to  the  ship. 

§  427.  In  ease  of  the  loss  of 
merchandise  when  placed  in  boats 
in  order  to  lighten  a  ship  to  enter 
a  port  or  river,  this  shall  be  borne 
by  contribution  on  the  part  of  the 
ship  and  entire  cargo. 

If  the  ship  perishes  with  the  rest 
of  her  cargo,  no  contribution  shall 
be  made  by  the  goods  placed  in 
the  lighters,  though  they  arrive  in 
good  safety. 

§  428.  In  all  the  cases  above  laid 
down,  the  captain  and  crew  have  a 
privileged  claim  (lien)  on  the  mer- 
chandise or  the  proceeds  of  its  sale 
for  the  amount  of  its  contribution. 

§  429.  If,  after  the  apportion- 
ment, the  goods  jettisoned  are  re- 
covered by  their  owners,  these  are 
bound  to  refund  to  the  captain  and 
others  interested  the  amount  they 
have  received  by  contribution,  de- 


(A)  This  provision  only  refers  to  subsequent  particular  average  losses  sustained  by 
the  ship  or  cargo.  The  goods  previously  sacrificed  must  contribute  to  subsequent 
general  average  losses.  (Desjardins,  vol.  4,  No.  980  ;  Lyon-Caen  and  Renault,  vol.  2, 
No.  890.) 


THE  LAW  OF  FRANCE. 


509 


dommagcs  causes  par  le  jot  et  dcs 
frais  de   recouvrement . 


TIT.   VIII.     DU  FRET  OU 
NOLLS. 

§  293.  Le  chargeur  qui  retire  ses 
marcliandiscs  pendant  le  voyage, 
est  tenu  de  payer  le  fret  en  entier 
et  tous  les  frais  de  deplacement  oc- 
casionnes  par  le  dechargement:  si 
les  marchandises  sont  retirees  pour 
cause  des  faits  ou  des  fautes  du 
capitaine,  celui-ci  est  vesponsable 
de  tous  les  frais. 

§  296.  Si  le  capitaine  est  con- 
traint  de  faire  radouber  le  navire 
pendant  le  voyage,  I'affreteur  est 
tenu  d'attendre  ou  de  payer  le  fret 
en  entier. 

Dans  le  eas  ou  le  navire  ne  pour- 
rait  etre  radoube,  le  capitaine  est 
tenu  d'en  louer  un  autre. 

Si  le  capitaine  n'a  pu  louer  un 
autre  navire,  le  fret  n'est  du  qu'a 
proportion  de  ce  que  le  voyage  est 
avance . 

§  298.  Le  fret  est  du  pour  les 
marchandises  que  le  capitaine.  a  ele 
contraint  de  vendre  pour  subvenir 
aux  victuailles,  radoub  et  autres 
necessites  pressantes  du  navire,  en 
tenant  par  lui  compte  de  leur 
valeur  au  prix  que  le  reste  ou  autre 
pareille    marchandiso     de     monie 


duction  being  made  for  the  damage 
caused  by  the  jettison  and  the 
expenses   of  recovery. 

TIT.  VIII.     OF  FREIGHT. 

§  293.  The  shipper  who  takes 
back  his  goods  during  the  voyage, 
is  bound  to  pay  the  full  freight, 
and  all  expenses  of  displacement 
occasioned  by  the  discharge;  if  the 
goods  are  taken  back  by  reason  of 
the  acts  or  faults  of  the  captain, 
the  latter  is  responsible  for  all  the 
expenses. 

§  296.  If  the  captain  is  obliged 
to  repair  the  ship  during  the 
voyage,  the  freighter  is  bound  to 
wait  or  to  pay  the  freight  in  full. 

In  case  the  ship  cannot  be  re- 
paired, the  captain  is  bound  to 
hire  another. 

If  the  captain  cannot  hire 
another  ship,  freight  is  only  due 
in  proportion  as  the  voyage  has 
been  partly  performed  (c). 

§  298.  The  freight  is  due  for  the 
o-oods  which  the  captain  has  been 
obliged  to  sell  in  order  to  pay  for 
provisions,  repairs,  and  other 
pressing  necessities  of  the  ^ship, 
he  accounting  for  their  value  at 
the  price  which  the  rest  or  other 
similar  goods  of  the  same  quality 


(i)  If  the  captain  is  oblifjod,  by  reason  of  damage  sustained  in  the  course  of  the 
Toya-e  to  repair  his  ship  and  to  sell  dama-ed  car-o  in  consequence  of  the  delay  for 
the  repairs,  he  is  not  entitled  to  the  full  freight,  but  only  to  freight  m  proportion  to 
the  distance  from  the  port  of  loading  to  the  port  of  refuge.  (Cour  de  Rennes,  25th 
April,  1880.) 


510 


APPENDIX  I. 


qualite  sera  vendu  au  lieu  de  la 
decharge,  si  le  navire  arrive  a  bon 
port. 

Si  le  navire  se  perd,  le  capitaine 
tiendra  compte  des  marchandises 
sur  le  pied  qu'il  les  aura  vendues, 
en  retenant  egalement  le  fret  porte 
aux  connaissemens. 


§  301.  Le  capitaine  est  paye  du 
fret  des  marchandises  jetees  a  la 
mer  pour  le  salut  commun,  a  la 
charge  de  contribution. 

§  302.  II  n'est  du  aucun  fret 
pour  les  marchandises  perdues  par 
•naufrage  ou  eehouement,  pillees 
par  des  pirates,  ou  prises  par  les 
ennemis. 

Le  capitaine  est  tenu  de  restituer 
le  fret  qui  lui  aura  ete  avanco,  s'il 
.n'y   a  convention  contraire. 

§  303.  Si  le  navire  et  les  inar- 
chandises  sont  rachetes,  ou  si  les 
marchandises  sont  sauvees  du  nau- 
frage, le  capitaine  est  paye  du  fret 
jusqu'au  lieu  de  la  prise  ou  du 
naufrage. 

II  est  paye  du  fret  entier  en  con- 
tribuant  au  rachat,  s'il  conduit  les 
marchandises  au  lieu  de  leur  desti- 
nation. 


will  sell  for  at  the  place  of  dis- 
charge, if  the  ship  arrives  there. 

'  If  the  ship  is  lost,  the  captain 
shall  account  for  the  goods  accord- 
ing to  the  sum  they  have  been  sold 
for,  he  retaining  in  this  case  also 
the  freight  named  in  the  bill  of 
lading. 

§  301.  The  captain  is  paid  the 
freight  on  goods  thrown  into  the 
sea  for  the  common  safety,  at  the 
charge  of  contribution. 

§  302.  No  freight  is  due  for 
goods  lost  by  shipwreck  or  strand- 
ing, pillaged  by  pirates,  or  taken 
by  the  enemy. 

The  captain  is  bound  to  refund 
freight  that  has  been  advanced, 
unless  there  is  a  stipulation  to  the 
contrary. 

§  303.  If  the  ship  and  goods 
are  ransomed,  or  if  the  goods  are 
saved  from  shipwreck,  the  captain 
is  paid  freight  up  to  the  place  of 
capture  or  shipwreck. 

He  is  paid  the  full  freight,  he 
contributing  to  the  ransom,  if  he 
carries  the  goods  to  their  place  of 
destination  (k) . 


1 


(^•)  Goods  which  have  been  submerged  at  the  port  of  discharge  and  sold  "  sub- 
merged "  by  the  captain,  are  deemed  to  have  been  saved  within  the  meaning  of  this 
article,  and  the  captain  is  therefore  entitled  to  full  freight  in  respect  of  them.  (Cour 
de  Cassation,  13th  Feb.  1877.) 

When  the  ship  has  been  wrecked  before  it  reaches  the  port  of  discharge,  the  pro 
raid  freight  due  to  the  captain  for  the  goods  saved  from  the  wreck  does  not  contribute 
to  the  salvage  expenses — the  terms  of  Art.  303,  par.  (1),  (supra),  are  too  explicit  to 
.admit  of  this  result.  (Trib.  de  Com.  du  Havre,  27th  Dec.  1887;  Trib.  de  Com.  de 
Dunkerque,  22nd  March,   1887;  Cour  de  Cassation,  14th  March,   1904.)     The  text- 


THE  LAW  OF  FRANCE. 


511 


§  304.  La  contribution  pour  le 
raehat  se  fait  sur  le  prix  eourant 
des  niarchandises  au  lieu  de  leur 
decharge,  deduction  faite  des  frais, 
et  sur  la  moitie  du  navire  et  du 
fret. 

Les  loyers  des  matelots  nentrent 
point  en  contribution. 

§  306.  Le  capitaine  ne  peut  re- 
tenir  les  marchandises  dans  son 
navire  faute  de  paiement  de  son 
fret. 

II  peut,  dans  le  temps  de  la  de- 
charge,  demander  le  depot  en 
mains  tierces  jusqu'au  paiement  de 
son  fret. 

§  .'JIO.  Le  chargeur  ne  peut 
abandonner  pour  le  fret  les  mar- 
■chandises  diminuees  de  prix,  ou 
'detoriorees  par  leur  vice  propre  ou 
par  cas  fortuit. 

Si  toutefois  des  futailles  con- 
tenant  vin,  huile,  miel  et  autres 
liquides,  ont  tellement  coule 
qu'elles  soieut  vides  ou  presque 
vides,  les  dites  futailles  pourront 
■etre  abandonnees  pour  le  fret. 

§  330.  Les  preteurs  a  la  grosse 
contribuent,  a  la  deeharge  des  em- 
prunteurs,  aux  avaries  communes. 
Les  avaries  simples  sont  aussi  a  la 
charge  des  preteurs  s'il  n'y  a  con- 
vention contraire. 

§  331 .  S'il  y  a  contrat  a  la  grosse 
et  assurance  sur  le  meme  navire  ou 
sur  le  meme  chargement,  le  pro- 


§  304.  The  contribution  for  the 
ransom  is  made  on  the  market 
price  of  the  goods  at  the  place  of 
discharge,  deducting  the  expenses, 
and  on  the  half  of  the  ship  and 
freight. 

The  seamen's  wages  do  not  enter 
into  the  contribution. 

§  306.  The  captain  may  not  re- 
tain the  goods  on  board  his  ship  in 
default  of  payment  of  his  freight. 

He  may,  during  the  discharge, 
insist  upon  their  deposit  in  third 
hands  until  the  payment  of  his 
freight. 

§  310.  The  freighter  cannot 
abandon  for  freight  goods  di- 
minished in  price,  or  deteriorated 
by  their  vice  propre  or  by  acci- 
dent. 

If,  however,  casks  containing 
wine,  oil,  honey,  or  other  liquids, 
have  so  leaked  out  as  to  be  empty 
or  nearly  empty,  such  casks  may 
be  abandoned  for  freight. 


§  330.  Lenders  on  bottomry  con- 
tribute to  general  average  in  place 
of  the  borrowers.  Particular  aver- 
ages are  also  at  the  lender's  charge 
if  there  is  no  agreement  to  the  con- 
trary . 

§  331.  If  there  is  both  a  bot- 
tomry bond  and  an  insurance  on 
the  same  ship  or  cargo,  the  pro- 


writers,  however,  generally  hold  the  contrary  opinion.  (See  A.  de  Courcy,  Revue 
Internationale  do  Droit  Maritime,  188.5-S6,  p.  66  'i  seq.  ;  Lyon-Caen  and  Renault, 
vol.  2,  No.  772  (2).) 


512 


APPENDIX  I. 


duit  des  effets  sauves  du  naufrage 
est  partage  entre  le  preteur  a  la 
grosse,  pour  sou  capital  seulement, 
et  I'assureur,  pour  les  sommes  as- 
surees,  au  marc  le  franc  de  leur 
interet  respectif,  sans  prejudices 
des  privileges  etablis  a  I'article 
191. 


ceeds  of  the  effects  saved  from 
shipwreck  are  divided  between  the 
lender  on  bottomry  for  his  capital 
only,  and  the  underwriter,  for  the 
sums  insured,  proportionately  to 
their  interest,  without  prejudice 
to  the  privileges  established  by 
^  191. 

[§  191  is  a  list  of  the  order  of 
debts  or  claims  privileged.] 


In  addition  to  the  decisions  of  the  French  Courts  cited  in  the  pre- 
ceding- notes,  the  following-  decisions  on  questions  of  general  average 
deserve  attention. 


A.  Character  of  the  Loss. 

A  loss  which  initially  is  particular  average  {e.g.,  accidental  strand- 
ing) cannot  become  a  general  average  lo-ss,  unless  a  new  event,  im- 
perilling- the  ship  and  cargo,  gives  it  this  character  (Cour  de  Rouen, 
7th  Feb.  1899). 

There  is  no  j)resumption  that  a  loss  is  general  average;  the  onus 
of  proof  is  on  the  party  who  seeks  to  have  it  adjusted  as  such  (Cour 
de  Eouen,  29th  Jan.  1896). 

It  is  not  sufficient,  to  change  a  particular  average  loss  into  general 
average,  that  a  voluntary  act  has  intervened.  It  is  also  necessary 
that  this  voluntary  act  shall  have  been  undertaken,  in  consequence  of 
imminent  danger,  for  the  common  safety  (Ibid.). 

The  question  whether  a,  loss  sustained  at  a  particular  moment  by 
the  ship  and  cargo  is  particular  or  general  average  is  essentially  one 
of  fact,  and  must,  therefore,  be  decided  by  the  tribunal  which  has 
to  determine  the  facts,  whose  decision  on  this  point  cannot  be  over- 
ruled by  the  Court  of  Cassation  (Cour  de  Cassation,  10th  Aug.  1880, 
18th  Oct.  1892; . 

B.  Principal  Kinds  of  General  Average  Losses. 

(1)  Strmiding. 

Damage  caused  to  a  ship  by  accidental  stranding  is  particular 
average.  Damage  done  in  the  operation  of  refloating  her  is  only 
deemed  to  be  general  average  when  it  is  possible  to  separate  it  from 
the  rest  of  the  damage.  The  mere  conjectures  of  expert-s,  not  cor- 
roborated by  the  sea-protest,  do  not  suffice  to  establish  the  separation. 


THE  LAW  OF  FRANCE.  513 

and  in  case  of  doubt  all  the  damag-e  to  the  ship  is  considered  particular! 
average  (Trib.  de  Com.  du  Havre,  10th  July,  1900).  See  also  ante, 
p.  498,  note  {g). 

When  an  accidental  stranding  has  not  placed  the  ship  in  a  posi- 
tion of  danger,  the  losses  which  result  from  the  stranding,  e.g., 
damage  to  her  machinery  in  the  course  of  refloating  her  and  the  cost 
of  getting  her  off,  are  particular  average  (Cour  de  Douai,  11th  July, 
1900). 

(2)  Salvage  and  Towage  Expenses. 

A  steamship  Avhieh  in  consequence  of  the  breaking  of  her  crank- 
shaft is  being  navigated  under  inadequate  sails,  in  bad  weather  and 
in  the  vicinity  of  the  land,  is  in  a  position  of  great  danger.  Con- 
sequently, if  the  captain  accepts  the  services  of  another  ship  to  tow 
her  into  safety  at  a  port  of  refuge,  the  towage  expenses  must  be  treated 
as  general  average  (Cour  d'Aix,  4th  Dee.  1901). 

(3)  Port  of  Refuge  Expenses.  ' 

When  a  ship  puts  into  a  port  of  refuge  solely  to  repair  damage 
and  give  some  rest  to  the  crew,  fatigued  by  prolonged  labour  at  the 
pumps,  the  port  of  refuge  expenses  cannot  be  treated  as  general 
average,  if  there  has  never  been  an  imminent  or  even  proximate  danger 
of  loss  (Trib.  de  Com.  du  Havre,  lltli  June,  1895).  On  the  other  hand, 
port  of  refuge  expenses  are  general  average  when  the  ship  has  put 
into  the  port  for  the  preservation  of  the  ship,  crew  and  cargo,  in 
consequence  of  a  leak  which  it  was  impossible  to  stop,  and  of  bad 
weather  which  has  rendered  the  position  of  the  ship  one  of  danger 
(Cour  de  Rouen,  14th  Feb.  1900).  So  also,  the  expenses  are  gx^neral 
average  where  the  ship  has  put  into  the  port  for  medical  attendance 
for  seamen  suffering  from  scurvy,  only  three  sailors  and  three  boys 
out  of  a  crow  of  twenty-three  being  free  from  the  disease,  and  even, 
they  being  in  danger  of  contracting  it,  so  that  the  captain  could  not, 
without  great  risk,  undertake  a  winter  voyage  across  the  Atlantic 
(Cour  de  Cassation,  18th  June,  1894). 

(4)  Press  of  Sail  or  Steam. 

Damage  done  by  carrying  a  press  of  sail,  or  by  working  engines 
under  press  of  steam  (forcement  de  vapeur)  to  keep  off  the  land  or 
a  reef  for  the  preservation  of  the  ship  and  cargo  is  general  average 
(Trib.  de  Com.  de  Marseille,  2nd  May,  1879,  and  13th  March,  1884; 
Coiu?  de  Rouen,  28th  Dec.  1874)  (0- 

[(/)  Apparently  thfi  view  taken  by  the  French  Courts  on  this  question  has  undergone 
a  change.     There  are  former  decisions  that  damage  done  to  a  ship  by  carrying  a  press 
L.  L  L 


514  APPENDIX  T. 

(5)  Fire  on  Board. 

Dainago  caused  l)y  the  flames  when  a  fire  has  arisen  on  board  is 
obviously  particular  average;  but  damage  caused  to  the  ship  or  cargo 
by  water  poured  in  to  extinguish  the  fire,  or  by  other  measures  taken 
for  this  purpose,  is  general  average  (Trib.  de  Com.  du  Havre,  21st 
Oct.  1889);  and  this  is  so  even,  in  the  case  of  goods  alread}'  touched 
by  fire,  the  practice  to  this  effect  prevailing  in  the  French  ports  being 
only  an  application  of  the  Code  of  Commerce  (Trib.  do  Com.  de 
Marseille,  10th  June,  1902;  Cour  d'Aix,  28th  Jan.  1903). 

(6)   Use  of  Cargo  and  Materials  for  Fuel. 

The  use  of  the  ship's  hatches,  planks  or  timbers,  or  of  part  of  the 
cargo,  for  fuel,  to  enable  the  ship  delayed  by  bad  weather  to  reach 
its  port  of  destination  is  a  loss  which  the  shipowner  must  bear  Avlien 
it  results  from  the  fault  of  the  captain  in  taking  an  insufficient  supply 
of  coal  on  board,  notwithstanding  the  expectation  of  a  contrary  mon- 
soon; or  when  it  results  from  the  fault  of  the  shipowner,  who  in 
making  a  contract  of  affreightment  for  a  ship  whose  bunkers  are 
insufficient  for  the  duration  of  the  voj'age,  has  omitted  to  reserve, 
in  addition  to  the  bunkers,  the  space  necessary  for  a  sufficient  supply 
of  coal  (Cour  de  Cassation,  17th  May,  1893).  When,  on  the  other 
hand,  neither  the  captain  nor  the  owner  has  been  in  fault,  and  the 
supply  of  fuel,  adequate  for  a  normal  voyage,  has  been  exhausted  in 
consequence  of  a  delay  due  to  exceptionall}^  bad  weather,  the  conse- 
quent use  of  other  articles  as  fuel  is  treated  as  a  general  average 
loss  (Trib.  de  Com.  de  Marseille,  1st  Dec.  1874.  and  2nd  May,  1888). 

(7)  Expenses  and  Damage  due  to  Ice-breaking. 

These  losses  are  general  average  when  they  are  incurred  by  the 
captain  to  extricate  the  ship  from  a  position  of  danger,  and  particular 
average  if  his  only  object  is  to  accelerate  the  voyage  (Trib.  de  Com.  de 
Marseille,  1st  June,  1880;  Cour  d'Aix,  5th  Dec.  1898). 

C.  Adjustment  of  General  Aver.\ge  and  Legal  Procedure. 

An  action  brought  to  obtain  a  settlement  of  general  average,  being 
in  the  nature  of  a  real  action,  ought  to  be  instituted  in  the  tribunal 


of  sail  is  not  general  average.  (See  an  old  decision  of  the  Court  of  Rennes,  cited  in 
Amould,  vol.  2,  §  934,  and  a  decision  of  the  Court  of  Douai,  cited  in  Appendix  C.  of 
the  last  edition  of  this  work,  p.  376.)  In  the  statement  of  the  practice  of  adjusting 
averages  at  the  time  of  that  edition,  it  was  said  [ibid.  p.  378),  that  "damage  done  by 
carrying  a  press  of  sail  is  admitted  in  principle  to  be  general  average,  but  the  practice 
is  to  restrict  this  admission  within  as  narrow  limits  as  possible." — Editoes.] 


THE  LAW  OF  FRANCE.  515 

of  the  port  of  destination,  when  the  discharge  takes  place  in  a  French 
port,  unless  this  course  is  proved  to  be  impossible.  This  rule  of  pro- 
cedure is  not  a  rule  of  public  policy  (u'est  pas  d'ordre  jniblic);  but 
in  order  to  oust  the  jurisdiction  the  assent  of  all  the  parties  inte- 
rested is  essential  (Cour  de  Bordeaux,  23rd  Nov.  1885;  Trib.  do  Com. 
de  Marseille,  21st  July,  1897). 

A  party  is  not  bound  by  a  settlement  of  general  average  if  he  has 
not  been  regularly  cited  (Trib.  de  Com.  de  Mar.seille,  22nd  Dec.  1897). 

An  action  by  the  captain  for  a  settlement  of  general  average  is 
not  maintainable,  unless  it  has  been  instituted  within  a  month  from 
the  date  of  the  protest  made  in  pursuance  of  Art.  435  of  the  Code 
of  Commerce  (Cour  de  Cassation,  2Gth  Oct.   1892). 

In  addition  to  the  notes  on  French  law  and  practice  already  in- 
serted, M.  Audouin  has  kindly  supplied  answers  to  the  following  ques- 
tions submitted  to  him  by  the  editors:  — 

Question  1.— When  a  ship  has  stranded  accidentally  and  the  engines 
have  been  worked  to  refloat  her,  is 

(a)  damage  done  to  the  engines, 

(b)  the  value  of  the  coal  and  engine-room  stores  consumed  in  the 

attempt  to  refloat  her, 
allowed  in  general  average? 

An.swer. — Both  (a)  and  (b)  are  allowed.  ,'  . 

Question  2.— When  a  ship  has  stranded  accidentally,  and  for  the 
purpose  of  refloating  her  a  series  of  operations  has  been  undertaken, 
such  as  the  discharge  of  the  cargo  at  different  times  into  Jightei-s, 
towage,  &c.,  is  the  whole  series  of  operations  considered  one  continuous 
general  average  act,  from  the  time  when  the  first  measure  is  begun 
until  the  ship  is  finally  refloated  with  part  of  her  cargo  on  board? 

Answer. — Yes. 

Question  3.— If  the  cargo  is  justifiably  sold  at  a  port  of  refuge 
to  defray  general  average  expenses,  how  is  the  loss  (if  any)  re- 
sulting from  this  sale  treated? 

Answer. — It  must  be  treated  as  general  average. 

Question  4. — Is  there  any  established  custom  with  regard  to  tlio 
coal  and  engine-room  stores  consumed  while  the  ship  is  bearing  up  for  a 
port  of  refuge  and  returning  to  the  point  of  deviation  from  her  course? 

Answer.— Not  as  yet,  as  shipowners,  as  far  as  Ave  know,  have  never 
thought  of  claiming  contribution  in  general  average  for  these  expenses. 
But  if  such  a  claim  were  ever  made,  in  our  opinion  it  ought  to  be  dealt 
with  by  the  application  of  the  last  paragraph  of  Art.  400  of  the 
Code  of  Commerce  ("and  in  general  .  .  .  the  expenses  incurred  .  .  , 
for  the  common  good  and  safety  of  the  ship  and  cargo"). 


L  L  2 


516  APPENDIX  I. 

Question  5. — When  a  shi])  puts  into  a  port  of  refuge  on  account 
of  general  or  particular  average,  are  all  the  port  of  refuge  expenses 
allowed  in  general  average,  including  those  of  entering  and  leaving 
the  port,  the  cost  of  unloading  and  reloading  the  cargo,  warehousing 
charges  and  insurance  of  the  cargo  unloaded? 

Answer. — Yes,  with  this  qualification,  that  if  the  ship  puts  into  the 
port  of  refuge  on  account  of  particular  average,  the  damage  must 
be  such  as  imperils  both  the  ship  and  cargo,  as  port  of  refuge  ex- 
penses can  only  be  allowed  in  general  average,  when  the  ship  has  put 
into  the  port  for  the  common  safety.  Of  course,  under  the  provision 
of  Art.  403  (4)  the  wages  and  maintenance  are  excepted  from  this 
rule,  when,  as  the  more  usual  case,  the  ship  has  been  chartered  for 
the  voyage. 

Question  6. — Is  damage  caused  to  the  cargo  by  its  forced  discharge 
at  the  port  of  refuge  allowed  in  general  average? 

xinswer. — Yes,  when  proof  is  given  that  the  damage  was  the  direct 
and  immediate  consequence  of  the  forced  discharge. 

Question  7. — Is  damage  suffered  by  the  cargo  in  the  warehouse 
where  it  has  been  stored  after  its  discharge  at  the  port  of  refuge 
allowed  in  general  average? 

AnsW'Cr. — Yes,  subject  to  the  condition  mentioned  in  the  preceding 
answer. 

Question  8. — When,  in  the  performance  of  a  charterparty,  a  ship 
is  proceeding  in  ballast  to  a  port  of  loading,  and  sacrifices  are  made 
or  expenses  incurred  in  the  nature  of  general  average,  does  the  loss 
fall  entirely  on  the  ship,  or  must  the  freight  to  be  earned  under  the 
charterparty  (freight  saved  by  the  general  average  act)  also  contri- 
bute? 

Answer. — The  expenses  must  be  divided  between  the  ship  and  the 
freight,  on  the  basis  of  their  respective  values. 

Question  9. — What  deductions  are  made,  for  the  difference  between 
old  and  new,  from  the  cost  of  replacement  or  repairs,  when  a  ship 
has  suffered  a  general  average  loss? 

Answer. — In  the  absence  of  a  legal  provision  on  this  point,  usage 
for  more  than  a  century  has  established  a  deduction  of  one-third  of 
the  value  as  new  of  ship's  materials  made  of  wood,  and  a  deduction 
of  one-sixth  in  respect  of  aa'ticles  made  of  iron,  e.g.,  chains  and 
anchors.  An  exception  is  made  when  the  ship  is  on  her  first  voyage, 
in  which  case  no  deduction  is  allowed.  But  this  deduction,  absolutely 
arbitrary,  has  not  always  been  allowed  by  the  Tribunals,  and  it  is 
also  criticized  by  the  text-writers  (Lyon-Caen  and  Renault,  vol.  2, 
No.  940;  Desjardins,  vol.  2,  No.  1056). 


THE  LAW  OF  FKAXCK  517 

Question  10.— la  the  note  to  Art.  419,  it  is  stated  that  passengers' 
baggage  is  exempt  from  contribution.  Must  it  be  contributed  for 
if  sacrificed  for  the  common  safety,  e.g.,  if  damaged  by  water  used 
to  extinguish  a  fire?  Perhaps  Art.  420  precludes  any  contribution 
in  general  average  for  a  loss  of  baggage,  as  generally  no  bill  of 
lading  is  given  for  it. 

Answer. — Art.  420,  construed  literajly,  would  not  allow  contribu- 
tion for  loss  of,  or  damage  to,  passengers'  baggage.  On  the  other 
hand,  this  same  Article  would  oblig-e  it  to  contribute  to  general 
average,  if  saved.  In  practice  it  is  never  made  to  contribute,  the 
reason  being  chiefly  the  difficulty,  if  not  impossibility,  of  fixing  the 
contributory  value. 

M.  Ch.  Lyon-Caen,  whom  I  have  consulted  on  this  point,  thinks 
that  jiotwithstanding  Art.  420,  passengers'  baggage  ought  to  be 
treated  on  the  same  principle  as  the  effects  of  the  crew,  which  are 
governed  by  Art.  419.  It  ought  not  to  contribute  if  saved,  but  if 
sacrificed  its  value  ought  to  be  made  good  in  general  average.  And 
in  this  case  (but  in  this  case  only)  it  ought  to  contribute.  This  is 
the  rule  of  the  German,  law. 

Question  11. — Where  ought  the  adjustment  to  be  made  (a)  when  the 
voyage  is  broken  up  at  the  port  of  loading,  (b)  when  the  voyage  is 
broken  up  at  a  port  of  refuge,  whence  the  cargo  is  forwarded  to  its 
destination  in  another  ship? 

Answer. — A  distinction  must  be  made.  If,  in  these  two  eases,  the 
charterparty  is  annulled  at  the  port  of  loading  or  of  refuge,  the  ad- 
justment ought  to  be  made  at  such  port,  as  there  the  definite  separa- 
tion of  the  interests  takes  place. 

If,  however,  in  order  to  avoid  increased  expense,  the  parties  agree 
that  the  cargo  shall  be  forwarded  from  the  loading  port  to  its  port 
of  destination,  in  another  vessel  certainly,  but  under  the  original  con- 
tract of  affreightment,  the  voyage  is  not  broken  in  the  legal  sense 
of  the  term,  aud  the  adjustment  ought  to  be  made  at  the  port  of 
destina.tion,  as  the  separation  of  the  interests  only  takes  place  there. 

Question  12. — Is  the  jettison  of  the  ship's  hawsers  or  other  gear 
kept  on  deck  contrary  to  maritime  usage,  a  general  average  loss? 

Answer. — No.  The  sacrifice  of  an  article  stowed  on  deck  is  never 
allowed  in  general  average,  except  on  short  coasting  voyages. 

Question  13. — Is  loss  or  damage  sustained  by  the  cargo  during  a 
forced  discharge  from  a  stranded  vessel  general  average? 

Answer. — Yes,  if  the  discharge  was  effected  to  enable  the  ship  to 
be  refloated. 


518 


APPENDIX  I. 


C^uestiun  14. — When  a  voyage  lias  been  broken  up  at  an  inter- 
mediate port,  on  what  value,  is  cargo,  previously  jettisoned,  contri- 
buted for  in  general  average? 

Answer.— On  its  value  at  the  place  Avhere,  in  reg-ular  course,  it  ought 
to  have  been  discharged,  i.e.,  on  principle,  the  intended  port  of  desti- 
nation. If,  however,  only  part  of  the  cargo  was  sacrificed  before  the 
ship  put  into  the  port  of  distress,  a,nd  as  regards  the  remainder  of 
the  cargo  the  eharterparty  is  annulled  at  the  port  of  distress,  the 
cargo  sacrificed  is  contributed  for  on  its  value  at  this  port,  which  by 
agreement  has  become  the  port  Avhere  the  voyage  terminates. 


(     '519      ' 


APPENDIX  J. 


THE  LAW  OF.  GERMANY. 

The  law  of  average  is  contained  in  the  Commercial  Code  for  the 
German  Empire.  This  Code  is  derived  from  the  Allgemeine  Deutsche 
Handelsgesetzbuch,  which  was  prepared  under  the  following  circum- 
stances. In  1856  the  then  Germanic  Confederation  determined  to  con- 
voke a  meeting  of  delegates  for  the  purpose  of  agreeing  upon  one 
general  mercantile  law  for  the  whole  of  their  territory.  The  Prussian 
Government  therevipon  appointed  three  committees  of  merchants,  one 
in  Stettin,  one  in  Danzig,  and  one  in-  Konigsberg,  to  make  the  needful 
investigations  and  prepare  the  draft  of  a  Code,  with  reasons  in  support 
of  each  clause.  The  German  Commissioners  met  at  Hamburg  in  April, 
1858,  assisted  by  delegates  from  the  more  important  mercantile  com- 
munities of  Germany,  selected  for  their  practical  knowledg'e;  and,  in 
the  result,  after  the  draft  thus  prepared  had  been  referred  to  the 
different  governments  for  approval,  that  Code  was  adopted  in  1862  (a). 

Following  the  political  evolution  of  Germany,  the  law  embodied  in 
that  Code  was  declared  in  1869  to  be  the  federal  law  of  the  States  form- 
ing the  North  German  Federation,  and,  after  the  foundation  of  the 
German  Empire  in  1871,  it  became  the  law  of  all  the  States  forming 
the  Empire.  In  the  course  of  time,  and  in  connection  with  the  con- 
templated introduction  of  a  new  Code  of  Civil  Law,  a  revision  of  the 
Commercial  Code  was  entered  upon,  and,  after  having*  been  adopted 
by  the  legislative  body,  this  new  Coinmercial  Code  came  into  operation, 
under  the  denomination  "Handelsgesetzbuch  fiir  das  Deutsche  Reich," 
on  the  1st  January,  1900',  at  the  same  time  as  the  new  Code  of  Civil 
Law. 

The  Fourth  Book  of  this  Commercial  Code  treats  of  the  maritime 
law,  and  the  seventh  section  of  this  Book  deals  with  the  law  of  averag-'o. 


(«)  Wendt,    Maritime   Legislation,    2nd  edit.    Intr.   xxvii. — xxviii.  ;    Arnold,    the 
Maritime  Code  of  the  German  Empire. 


520 


APPENDIX  J. 


Apart   from    some    minor   details,  tliere    is   practically    no   differeuce 
between  the  wording-  of  the  new  and  old  Code  in  tliis  section. 


I) AS  HANDELSGESETZBUCH 
FUR  DAS  DEUTSCHE   BE  ICE. 

ViERTES  BUCH. 
SlEBENTER  AbSCHNITT. 

HAVEREI. 

Erster  Titel. 
Grosse  (Gemeinschaftliche)  Ha- 

VEREI  UND  BESONDERE  HavEREI. 

§  700.  Alle  Schaden,  die  dem 
Schiff  oder  der  Ladung-  oder  beiden 
zum  Zweck  der  Errettung  beider 
aus  einer  gemeinsamen  Gefahr 
von  dem  Schiffer  oder  auf  dessen 
Gelleiss  vorsatzlich  zugefiigt  war- 
den, sowie  audi  die  durch  solche 
Massregeln  ferner  verursaehten 
Schaden,  ingieichen  die  Kosten, 
die  zu  demselben  Zweck  auf- 
gewendet  werden,  sind  grosse 
Haverei. 

Die  grosse  Haverei  wird  von 
Schiff,  Fracht  und  Ladung  ge- 
meinschaftlich  getragen. 

§  701.  Alle  nicht  zur  grossen 
Haverei  gehorigen,  durch  einen 
Unfall  verursaehten  Schaden  und 
Kosten,  soweit  die  letzteren  nicht 
unter  den  §  621  (&)  fallen,  sind 
besondere  Haverei. 


(J)  §  621.  Ausser  der  Fracht  konnen 
Kaplaken,  Pramien  und  dergleichen  nicht 
sof  order t  werden,  sofern  sie  nicht  ausbe- 
dimgen  sind. 

Die  gewohnlichen  und  ungewohnlichen 
Unkosten  der  Schiff fahrt,  als:  Lootsengeld, 
Haf engeld,  Leuchtfeuergeld,  Schlepplohn, 
Quarantainegelder,  Auseisungskosten  und 
dergleichen,      fallen     in     Ermangelung 


COMMERCIAL    CODE  FOR    THE 
GERMAN  EMPIRE. 

Fourth  Book. 

Seventh  Section. 

AVERAGE. 

Title  1. 

General  (Common)  and  Par- 
ticular Average. 

§  700.  All  damage  intentionally 
done  to  ship  or  cargo,  or  both,  by 
the  master  or  by  his  orders,  for 
the  purpose  of  rescuing  both  from 
a  common  danger,  together  with 
any  further  damage  caused  by  such 
measures,  and  also  expenses  in- 
curred for  the  same  purpose,  are 
general  average. 


General  average  is  borne  by 
ship,  freight,  and  cargo  in 
common. 

§  701.  All  damage  and  expense 
caused  by  an  accident,  and  not 
belonging  to  general  average,  so 
far  as  they  do  not  fall  under 
§  621  (&),  are  particular  average. 


(b)  §  621.  Primage,  gratuities,  and 
the  like,  cannot  be  demanded  in  addition 
to  the  freight,  except  when  stipulated 
for. 

The  ordinary  and  extraordinary  ex- 
penses of  navigation,  such  as  pilotage, 
port  dues,  lights,  towage,  quarantine  dues, 
cutting  through  ice,  and  the  like,  are,  in 
the  absence  of  a  stipulation  to  the  con- 


THE  LAW  OF  GERMANY. 


521 


Die  besondere  Haverei  wird  von 
den  Eigenthiimern  des  Schiffs  und 
der  Ladving-,  von  jedem  fiir  sich 
allein,  getragen. 

'  §  702.  Die  Anwendung  dcr  Bes- 
timmimgen  iiber  grosse  Haverei 
wird  dadurch  nicht  ausgeschlossen , 
dass  die  Gefahr  in  Folge  des  Ver- 
schuldens  eines  Dritten  oder  atich 
eines  Betheiligten  horbeigefiilirt 
ist. 

Der  Betlieiligte,  welchem  ein 
solches  Verschuldeu  zur  Last  f allf , 
kann  jedoch  niclit  allein  wegen  der 
ihm  etwa  entstandenen  Schiiden 
keine  Vergiitung  f order n,  sondern 
er  ist  audi  den  Beitragspflichtigen 
fiir  den  Verlust  verantwortlich, 
den  sie  dadurch  erleiden,  dass  der 
Schaden  als  grosse  Haverei  zur 
Vertheilung  koinmt. 

Ist  die  Gefahr  durch  eine  Person 
der  Schiffsbesatzung  verschuldet, 
so  tragt  die  Folgen  dieses  Ver- 
schuldens  audi  der  Rlioder  uadi 
Massgabe  der  §§  485,  486  (c). 


Particular  average  is  borne  by 
the  owners  of  the  ship  and  the 
cargo  respectively,  each  bearing 
his  own  loss. 

§  702.  The  application  of  the 
rules  for  o-eneral  average  is  not 
debarred  by  the  fact  that  the 
danger  has  been  occasioned  by 
(he  fault  of  a  third  party,  or  even 
of  one  of  the  parties  interested  in 
the  adventure. 

The  party  interested  avIio  is  in 
fault  is,  however,  not  only  pre- 
cluded from  claiming  compensa- 
tion for  any  loss  he  may  himself 
have  sustained,  but  is  likewise 
answerable  to  each  contributor 
for  the  loss  which  the  latter  may 
suffer  by  reason  of  the  damage 
being  apportioned  as  general 
average . 

If  the  danger  has  arisen  through 
the  fault  of  one  of  the  crew,  the 
shipowner  also  is,  subject  to  the 
conditions  of  §§  485,  486  (c), 
answerable  for  the  consequences. 


einer  entgegenstehenden  Atrede  dem 
Verfrachter  allein  znr  Last,  selbst  wenn 
er  zu  den  Massregeln,  welche  die  Auslagen 
verursacht  haben,  auf  Grund  des  Fracht- 
vertrages  niclit  verpflichtet  war. 

Die  Falle  der  grossen  Haverei,  sowie 
die  Falle  der  Aufwendung  von  Kosten  zur 
Erhaltung,  Bergiing  und  Eettung  der 
Ladung  werden  durch  die  Vorschriften 
des  Abs.  2  nicht  beriihrt. 

(c)  ^  485.  Der  Rheder  ist  fiir  den 
Schaden  verantwortlich,  welchen  eine 
Person  dcr  Schiffsbe.«atzung  einem  Dritten 
durch  ihr  Verschuldeu  in  Ausfiihrung 
ihrer  Dienstverrichtungen  zufiigt. 

§  486.  Der  Rheder  haftet  fiir  den  An- 
spruch   eines    Dritten    nicht    personlich, 


trary,  to  be  borne  by  the  shipowner  alone, 
even  though  the  measures  which  have 
necessitated  this  expense  were  not  obli- 
gatory under  the  contract  of  affreight- 
ment. 

Cases  of  general  average,  as  well  as  the 
case  of  expenditure  for  the  cost  of  pre- 
serving, warehousing,  or  rescuing  the 
cargo,  are  not  affected  by  the  provisions 
of  paragraph  2. 

(c)  §  485.  The  shipowner  is  answer- 
able for  any  loss  occasioned  to  a  tliird 
party  by  the  mastor  or  any  of  the  crew 
through  their  fault  in  the  performance  of 
their  duties  in  his  service. 

§  486.  The  shipowner  is  not  personally 
liable  to  the  claim  of  a  third  party,  but 


0-22 


APPENDIX  J. 


§  703.  Die  Haverei-vertheilung' 
tritt  jiur  eiu,  wenn  sowohl  das 
Schiff  als  audi  die  Ladung-,  uiid 
zwar  jeder  dieser  Geg-enstande 
entweder  ganz  oder  theilweise 
wirklieli  gerettet  Avorden  ist. 

§  704.  Die  Verpflichtung,  voii 
einem  geretteten  Gegenstande  bei- 
zutragen,  wird  dadurch,  dass  der- 
selbe  spater  von  einer  besonderer 
Haverei  betroffen  wird,  uur  dann 
vollstiindig  aiifgehoben,  weiiu  der 
GegeiistaBd  ganz  verloren  geht. 

§  705.  Der  Anspruch  auf  Ver- 
giitung  einer  zur  grossen  Haverei 
geliorcuden  Beschadigung  wird 
durch    eine     besoudere     Haverei, 


§  703.  Average  contribution 
takes  place  only  when  both  the 
ship  and  the  cargo,  each  either 
wholly  or  in  part,  have  actually 
been  saved. 


§  704.  The  obligation  to  contri- 
bute on  the  part  of  an  article  saved 
is  only  completely  annulled  when 
the  article,  owing  to  its  having 
subsequently  suffered  particular 
average,  is  entirely  destroyed. 

§  705.  The  right  to  compensa- 
tion for  damage  belonging  to 
general  average  is  only  taken 
away    by    a     particular     average 


sondern   er   haftet    nur  mit    Schiff    unci 
Fracht : 

1.  wenn  der  Ansprucli  auf  ein  Eeehts- 
geschaft  gegriindet  wird,  welches  der 
Schiffer  als  solclier  kraft  seiner  gesetzlich- 
en  Befugnisse,  und  nicht  mit  Bezug  auf 
eine  besondere  Vollmacht  geschlossen 
hat : 

2.  wenn  der  Anspruch  auf  die  Nichter- 
fiiUung  oder  auf  die  unvoUstandige  oder 
mangelhaf  te  Erf  iillung  eines  von  dem  Rhe- 
der  abgeschlossenen  Vertragcs  gegriindet 
wird,  sofern  die  Ausfiihruug  des  Ver- 
trages  zu  den  Dienstobliegenheiten  des 
Schiffers  gehort  hat,  ohne  Unterschied, 
ob  die  Nichterfi'dlung  oder  die  unvoll- 
sttindige  oder  die  maugelhafte  ErfliUung 
von  einer  Person  der  Schiffsbesatzung 
A-erschuldet  ist  oder  nicht : 

3.  wenn  der  Anspruch  auf  das  Ver- 
schulden  einer  Person  der  Schiffsbesatzung 
gegriindet  wird  : 

Diese  Vorschrift  findct  in  den  fallen  der 
No.  1,  2,  kcine  Anwendung,  wenn  den 
Rheder  selbst  in  .i^sehuug  der  Ver- 
tragserfiillung  ein  Verschulden  trifft,  oder 
wenn  er  die  Vertragserfiillung  besonders 
gewahrleistet  hat. 


only  to  the  extent  of  the  ship  and  freight 
\_in  rein]  : 

1.  when  the  claim  is  founded  upon 
a  legal  transaction  \_ftcfe,  e.g.,  a  bottomry 
bond]  which  the  captain  as  siich  hag 
signed  in  vu'tue  of  his  [ordinary]  legal 
authority,  and  not  in  virtue  of  a  special 
authorization : 

-.  when  the  elaini  is  founded  on  the 
non-performance  or  incomplete  or  faulty 
performance  of  a  contract  concluded  by  the 
owner,  so  far  as  the  carrying  out  of  the 
contract  has  fallen  within  the  obligations 
of  the  master  as  his  servant,  no  matter 
whether  or  not  the  non-performance  or 
incomplete  or  faulty  performance  arose 
from  the  fault  of  the  master  or  seamen  : 


3.  when  the  claim  is  founded  on  the 
fault  of  a  person  of  the  ship's  crew 
[master  or  seaman]. 

This  provision  is  not  applicable,  how- 
ever, in  the  cases  within  Nos.  1  and  2, 
if  the  shipowner  is  himself  in  fault  with 
respect  to  the  performance  of  the  contract, 
or  if  he  has  himself  expressly  guaranteed 
its  performance. 


THE  LAW  OF  GERMANY. 


52:^ 


welche  den  beschadigteii  Gegen- 
stand  spater  trifft,  sei  es,  dass  er 
von  Neuem  beschadigt  Avird  oder 
ganz  verloren  geht,  niir  dann 
aufgehoben,  Avenn  dor  spiitere 
Unfall  mit  dem  friiheren  in  keinem 
Zusammenhange  steht,  iind  nur 
insoweit  als  der  spiitere  Unfall 
auch  den  friiheren  Schaden  nach 
sich  gezogen  haben  wiirde,  Avenn 
dieser  nicht  bereits  entstanden  ge- 
Avesen  Aviire. 

Sind  jedocli  A^or  Eintritt  des  spii- 
teren  Unfalles  zur  Wiederherstel- 
hmg  des  beschadigtcn  Gegen- 
standes  bereits  Aiifwendungen 
gemacht,  so  bleibt  riicksiehtlich 
dieser  Anspruch  auf  Vergiitiing 
bestehen. 

§  706.  Gi-rosse  HaA^erei  liegt 
namentlicli  in  folgendeu  Fallen 
vor,  vorausgesetzt,  dass  in  den- 
selben  zugleicli  die  Erfordernissc 
der  §§  700,  702  und  703,  insoweit 
A'^orlianden  sind,  als  in  den  fol- 
genden  Vorschriften  niclits  Beson- 
deres  bestimmt  ist:  — 

1.  Wenn  Waaren,  Seliitfstlieile 
oder  Schiffsgeratlischaften  liber 
Bord  geworfen,  Masten  gekappt, 
Taue  oder  Segel  Aveggesehnitten, 
Anker,  Ankertaue  oder  Anker- 
ketteu  geschlippt  oder  gekappt 
Averden, 

Sowolil  diese  Schaden  sclbst  als 
die  durcli  solche  Massregeln  an 
Schiff  oder  Ladung  ferner  A-erur- 
sachten     Schaden     o-ehoren 


zur 


grossen  HaA^erei. 


2.  Wenn  zur  Erloicht^nning  des 


which  subsequently  affects  the 
damaged  article,  whether  this  bo 
again  damaged  or  totally  de- 
stroyed, Avhcn  the  later  accident 
Avas  entirely  independent  of  the 
earlier  one,  and  only  in  so  far  as 
the  later  accident  Avould  haA'O 
likewise  occasioned  the  earlier 
damage,  if  this  had  not  already 
taken  place. 


If,  however,  before  the  occur- 
rence of  the  later  accident  expense 
has  already  been  incurred  for  the 
restoration  of  the  damaged  object, 
the  claim  for  compensation  holds 
good  in  regard  to  such  expendi- 
ture. 

§  706.  General  average  takes 
place  in  particular  in  the  folloAV- 
ing  cases,  assuming  that  the  re- 
quirements of  §§  700,  702  and 
703  are  likoAvise  satisfied  in  so  far 
as  the  matter  is  not  expressly 
dealt  Avith  in  the  following  rules:  — 


1.  When  goods,  ship's  materials 
or  ship's  furniture,  are  throAvn 
OA-erboard,  masts  cut  aAvay,  ropes 
or  sails  cut  away,  anchors  or 
cables  slipped  or  cut  away, 


Not  oidv  this  damage  itself,  but 
also  the  further  damage  caused  to 
ship  or  cargo  through  such  mea- 
sures, belong  to  general  average. 


2.  When  in  order  to  lighten  the 


524 


APPENDIX  J. 


Schiffs  die  Ladung-  ganz  oder 
theilweise  iu  Leichterfalirzeuge 
tibergeladen  wird, 

Es  gehort  zur  g-rossen  Ilaverei 
sowohl  der  Leichtorlolin  als  der 
Schaden,  der  bei  dem  Ueberladen 
in  das  Leichterfahrzeug  oder  bei 
dem  Riickladen  in  das  SchifJ  der 
Ladung  oder  dem  Schifi  zugefiigt 
wird,  eowie  der  Schaden,  den  die 
Ladimg  auf  dem  Leichterfahrzeug 
erleidet. 

Muss  die  Erleiehterung  im  re- 
gelmassigen  Verlauf  der  Eeise 
erfolgen,  so  liegt  gros?e  Haverei 
nicht  vor. 

3.  Wenn  das  Schiff  absichtlicli 
auf  den  Strand  gesetzt  wird, 
jedocli  nur  wenn  es  zum  zweclce 
der  Abwendung  des  Unterganges 
oder  der  Nehmung-  geschieht, 

Sowohl  die  dui'ch  die  Strandung 
einschliesslich  der  Abbringxmg 
entstehenden  Schaden,  als  auch 
die  Kosten  der  Abbringung  ge- 
horen  zur  grossen  Haverei. 

Wird  das  behufs  Abwendung 
des  Unterganges  auf  den  Strand 
gesetzte  Schiff  nicht  abgebracht 
oder  nach  der  Abbringung  repara- 
tiu'unfahig  (§  479)  (d)  befunden, 
so  findet  eine  Havereivertheilung 
nicht  statt. 


{d)  §  479.  Im  Siane  dieses  vierten 
Buches  gilt  ein  seeuntiichtig  gewordeues 
Schiff : 

1 .  als  reparaturunf  ahig,  wenn  die  Repa- 
ratur  des  Schiffs  iiberhaupt  uicht  moglich 
ist,  oder  an  dem  Ort,  avo  das  Schiff  t-ich 
befindet,  nicht  bewerkstelligt,  d<is  Schiff 
auch  nicht  nach  dem  Hafen,  wo  die 
Reparatm-  auszufiihren  ware,  gebracht 
werden  kann : 


ship  the  cargo  is  wholly  or  in  part 
discharged  into  lighters, 

there  belongs  to  general  aver- 
ago  not  only  the  hire  of  the 
lighters,  but  also  the  damage 
which  is  occasioned  either  to  the 
ship  or  cargo  by  the  tranship- 
ment of  the  cargo  into  the  lighters 
and  by  the  reloading,  together 
with  the  damage  which  the  cargo 
sustains  on  board  the  lighters. 

When  the  lightening  of  the  ship 
must  take  place  in  the  ordinar}' 
course  of  the  voyage,  there  is  no 
general  average. 

3.  When  the  ship  is  intention- 
ally stranded  (only,  however,  when 
the  object  of  the  stranding  is  to 
prevent  her  foundering  or  being 
captured), 

Not  only  the  damage  done 
through  the  stranding,  inclusive  of 
the  bringing-off,  but  also  the  ex- 
penses of  bringing  her  off,  belong 
to  general  average. 

If  the  ship,  which  has  been  put 
aground  to  prevent  her  foundering, 
is  not  brought  off,  or  is  found  to 
be  irreparable  after  she  has  been 
brought  off  (§  479)  (d),  no  aver- 
age contribution  takes  place. 


(d)  §  479.  In  the  meaning  of  this 
Fourth  Book  a  ship  is  understood  to  be 
unseaworthy  : 

1.  as  incapable  of  repair,  when  the 
repair  of  the  ship  is  altogether  impossible, 
or  cannot  be  effected  at  the  place  where 
the  ship  lies,  and  the  ship  cannot  be  re- 
moved to  a  harbour  where  she  might  be 
repaired : 


THE  LAW  OF  GERMANY. 


525 


Strandet  clas  Schiff,  oline  class 
die  Strandung'  zur  Rettung'  von 
Sohiff  und  Laduno-  vorsiitzlich 
herbeig-efiihrt  ist,  so  gehoren  zwar 
nicht  die  durch  die  Strandung- 
veranlassten  Schaden,  wolil  aber 
die  auf  die  Abbringung  verwen- 
deten  Kosten  und  die  zu  diesem 
Zweck  dem  Schiff  oder  der  Laduno- 
absielitlich  zugefiigten  Schaden 
zur  grossen  Haverei. 

4,  Wenn  das.Schiff  zur  Vermei- 
dung  einer  dem  SchifE  und  der 
Ladung  im  Falle  der  Forfesetzung 
der  Reise  drohenden  gemeinsamen 
Gefahr  in  einen  Nothhafen  eino-e- 
laufen  ist,  insbesondere  wenn  das 
Einlaufen  zur  nothwendigen  Aus- 
besserung  eines  Schadens  erfolgt, 
den  das  Schiff  wahrend  der  Reise 
erlitten  hat, 

Es  gehoren  in  diesem  Falle  zur 
grossen  Haverei:  die  Kosten  des 
Einlaufens  und  des  Auslaufens, 
die  das  Schiff  selbst  treffenden  Au- 
fenthaltskosten,  die  der  SehifPs- 
besatzung  wilhreud  des  Aufent- 
halts  gebiihrende  Heuer  und  Kost, 
die  Avislafjen  fiir  die  Unterbrinor- 


ung 


der 


Schiffsbesatzung     am 


2.  als  reparaturunwiirdig,  wenn  die 
Kosten  der  Reparatur  ohne  Ahzug  fiir  den 
Unterschied  zwischen  alt  und  neu  mehr 
betragen  wiirdcn,  als  drei  Viertel  seines 
f  riihercn  Werths. 

Ist  die  SeeuntiioTitigkeit  wahrend  einer 
Reise  eingetreten,  so  gilt  als  der  friihere 
Werth  derjenige,  welchen  das  SchifE  bei 
dem  A.ntritt  der  Reise  gehabt  hat ;  in  den 
iibrigen  Fallen  derjenige,  welchen  das 
Schiff,  bevor  es  seeuntiichtig  geworden 
ist,  gehabt  hat  oder  bei  gehoriger  Ausriis- 
tung  gehabt  haben  wiirde. 


If  the  ship  is  stranded,  without 
this  liaving'  been  intentionally 
done  for  the  preservation  of  ship 
and  cargo,  the  damage  occasioned 
by  the  stranding  is  not,  but  the 
cost  of  bringing  her  off,  together 
with  the  damage  intentionally 
done  to  the  ship  or  cargo  for  this 
purpose,  is  the  subject  of  general 


average. 


4.  When  the  ship,  in  order  to 
avoid  a  common  danger  threaten- 
ing ship  and.  cargo  in  case  the 
voj^age  be  continued,  is  run  into 
a  harbour  of  refuge,  particularly^ 
when  the  running  in  is  for  the 
necessary  repairing  of  damage 
which  the  ship  has  suffered  during 
the  voyage, 

there  belong  in  this  case  to 
general  average,  the  expense  of 
going  in  and  coming  out;  the  ex- 
penses attaching  to  the  ship  her- 
self for  the  stay;  the  wages  and 
maintenance  of  the  crew  durincc 
the  stay,  as  well  as  the  expenses 
of  lodging  the  crew  on  shore,  so 
long   as    they  cannot   remain    on 


2.  as  not  worth  repairing,  when  the 
cost  of  repair,  without  deduction  for  the 
difference  between  old  and  new,  would 
amount  to  more  than  three-quarters  of  the 
ship's  former  value. 

If  the  unseaworthiness  has  taken  place 
during  a  voyage,  the  former  A'alue  is  to 
be  taken  as  that  which  the  ship  had  at 
the  commencement  of  the  voyage ;  in 
other  cases  as  that  which  the  ship  had 
before  she  became  unseaworthy,  or  would 
have  had  after  being  properly  fitted  out. 


526 


APPENDIX  J. 


Lande,  solange  die  Besatzung 
nicht  an  Bord  verbleibeu  kann, 
ferner,  falls  die  Ladung-  wegen 
des  Grundes,  Avelcher  das  Eiii- 
laufeu  in  den  Notliliafen  horbeige- 
fiihrt  hat,  gelosclit  ■\verden  muss, 
die  Kosten  des  Verbringens  von 
Bord  und  an  Bord,  sowie  die  Kos- 
ten der  Aufbewahrung-  der  Ladung- 
am  Lande  bis  zu  dem  Zeitpunkte, 
in  welchem  sie  wieder  an  Bord 
gebracht  Averden  kan, 

Die  sammtliehen  Aufenthalts- 
kosten  kommen  nur  fiir  die  Zeit 
der  Fortdauer  des  Grundes  in 
Rechnung,  der  das  Einlaufen  in 
den  Notlihafen  herbeigefiihrfc  hat. 
Liegt  der  Grund  in  einer  nothwen- 
digen  Ausbesserung'  des  Sehiffs,  so 
kommen  ausserdem  die  Aufent- 
haltskosten  nur  bis  zu  dem  Zeit- 
punkte in  Rechnung,  in  A\'elchem 
die  Ausbesserung  hatte  vollendet 
sein  konnen. 

Die  Kosten  dor  Ausbesserung 
des  Sehiffs  gehoren  nur  insoweit 
zur  grossen  Haverei,  als  der  aus- 
zubessernde  Schaden  selbst  grosse 
Haverei  ist. 


5.  "Wenn  das  Schiff  gegen 
Feinde  oder  Seeriiuber  vertheidigt 
wird, 

Die  bei  der  Vertheidigung  dem 
Schiff  oder  der  Ladung  zugefiigten 
Beschiidigujigen,  der  dabei  ver- 
brauchte  Schiessbedarf  und,  falls 
eine  Person  der  Schiffsbesatzung 
bei  der  Vertheidigiuig  verwundet 
oder  vertodtet  ist,  die  Heiliuigs- 
und  Begriibnisskosteu,  sowie  die 
naeh  den  §§  553,  554  dieses  Gesetz- 


board;  and  further,  in  case  the 
cargo  must  be  discharged  on  ac- 
count of  the  motive  -which  led  to 
putting  into  the  port  of  refuge,  the 
cost  of  discharging  and  reloading, 
and  the  cost  of  warehousing  the 
cargo  on  shore  up  to  the  time 
■when   it   can  be   taken   on   board 


again. 


The  several  expenses  of  the  stay 
in  port  are  to  be  brought  into  the 
account  only  for  the  period  of  time 
"which  the  motive  for  putting  in 
has  necessarily  caused  to  be  occu- 
pied. If  the  motive  is  the  neces- 
sary repairing-  of  the  ship,  the  cost 
of  the  stay  is  to  be  brought  into 
account  onl}^  up  to  the  time  when 
the  repairs  could  have  been  com- 
pleted. 

The  cost  of  repairing  the  ship 
belongs  to  general  average,  only 
so  far  as  the  damage  to  the  ship 
itself  is  general  average. 


5.  When  the  ship  is  defended 
against  enemies  or  pirates, 

the  damage  done  to  the  ship  or 
cargo  in  consequence  of  the  de- 
fence, the  ammunition  expended, 
and  in  case  any  of  the  crew  are 
wounded  or  killed  in  the  defence, 
the  cost  of  their  cure  or  interment, 
as  well  as  the  rewards  to  be  i^aid 
in  accordance  with  §§  553,  554  of 
this   Code  and   §§   61,  64  of  the 


I 


THE  LAW  OF  GERMANY. 


527 


buches  und  den  §§  61,  64  dor  Sec- 
mannsordnung-  zu  zahlenden  Be- 
lohnungen  (e)  bildon  die  grosse 
Haverei. 


Seamen's     Act(e),    are     general 


average. 


(e)  §  553.  Falls  der  Schiffer  nach  An- 
tritt  der  Reise  erkrankt  oder  verwundet 
wird,  80  triigt  der  Rheder  die  Kosten  der 
Verpflegung  und  Heilung : 

1.  wenn  der  Schiffer  mit  dem  Schiff 
zuriickkehrt  und  die  Riickreise  in  dem 
Heimathshafen  oder  in  dem  Hafen  endet, 
wo  er  geheuert  worden  ist,  bis  zur  Becu- 
digung  der  Riickreise ; 

2.  wenn  er  mit  dem  Schiff  zuriick- 
kehrt und  die  Rcise  nicht  in  einein  der 
genannten  Hiifen  endet,  bis  zuni  Ablauf 
von  sechs  Mouaten  seit  Beendiguug  der 
Riickreise ; 

3.  wenn  er  wiihrend  der  Reise  am 
Lande  zuriickgelassen  werden  musste,  bis 
zum  Ablauf  von  sechs  Monaten  seit  der 
Weiterreise  des  Schiffes. 

Audi  kann  der  Schiffer  in  den  beiden 
letzteren  Fallen  freie  RiiijkbeiiJrderuDg 
(§  5'47)  oder  nach  ssiner  Wuhl  eiue  ent- 
sprechende  Vergiitung  beanspruchen. 

Die  Heuer  einschliesslich  aller  sonst  be- 
dungenen  Vortheile  bezieht  der  nach  An- 
tritt  der  Reise  erkrankte  oder  verwundete 
Schiffer,  wenn  er  mit  dem  Scliiff  zuriick- 
kehrt, bis  zur  Beendigung  der  Riickreise, 
wenn  er  am  Lande  zuriickgelassen  werden 
musste,  bis  zu  dem  Tage,  an  wel(;hem  er 
das  Schiff  verliisst. 

Ist  der  Schiffer  bei  Vertheidigung  des 
Schiffes  beschiidigt,  so  hat  er  iiberdies  auf 
eine  angemessene  Belohnung  Anspruch. 

§  554.  Stirljt  der  Schiffer  nach  Antritt 
des  Dienstes,  so  hat  der  Rheder  die  bis 
zum  Todestage  verdiente  Heuer  ein- 
schliesslich aller  sonst  bedungenen  Vor- 
theile zu  entrichten  ;  ist  der  Tod  nach 
Antritt  der  Reise  erfulgt,  so  hat  der  Rheder 
auoh  die  Beerdigungskosten  zu  zahlen. 

Wird  der  Schiffer  bei  Vertheidigung 
des  Schiffes  gctiJdtet,  so  hat  der  Rheder 
iiberdies  eine  angemessene  Belohniing  zu 
zahlen. 


(c)  §  553.  In  case  the  master,  after  the 
outset  of  the  voyage,  falls  sick  or  is 
wounded,  the  owner  bears  the  expense  of 
his  care  and  healing  : 

1.  when  the  master  returns  with  the 
ship,  and  the  return  voyage  ends  at  the 
home  port,  or  at  the  port  where  he  was 
hired,  then  until  the  end  of  the  voyage  ; 

2.  when  he  returns  with  the  ship,  and 
the  vo3-age  does  not  end  at  one  of  the 
ports  above-named,  then  until  the  expira- 
tion of  six  months  from  the  end  of  the 
return  voyage ; 

3.  when  during  the  voyage  he  must  be 
left  behind  on  shore,  then  until  the  ex- 
piry of  six  months  from  the  return  of 
the  ship. 

The  master  is  also  entitled  in  the  two 
latter  cases  to  a  free  return  passage 
(§  547),  or,  at  his  optiou,  to  a  correspond- 
ing compensation. 

The  master  who  has  been  invalided  or 
wounded  after  the  outset  of  the  voj-age  is 
entitled  to  his  wages,  together  with  all 
stipulated  perquisites,  if  he  returns' with 
the  ship,  up  to  the  end  of  the  voyage ;  if 
he  is  obliged  to  be  left  behind  on  shore, 
up  to  the  day  when  he  leaves  the  ship. 

If  the  captain  is  injured  in  the  defence 

of  the  ship,  he  is  in  addition  entitled  to  u 
reasonable  compensation. 

§  554.  If  the  master  dies  after  entering 
upon  the  service,  the  owner  must  pay  his 
wages  inclusive  of  all  stipiilated  perqui- 
sites up  to  the  day  of  his  death ;  if  the 
death  takes  place  after  the  outset  of  the 
voyage,  the  owner  is  also  to  pay  the 
expense  of  the  burial. 

If  the  master  is  killed  in  the  defence  of 
the  ship,  the  owner  is  in  addition  to  pay 
a  reasonable  compensation. 


528 


APPENDIX  J. 


6.  Wenn  im  Fall  der  Anlialtung- 
de.s  Schiffes  durch  Feinde  oder 
Seerauber  Schiff  imd  Ladling  los- 
gekauft  "werden, 

Was  zum  Loskauf  g-egeben  ist, 
bildet  nebsl  den  dureli  den  Unter - 
halt  und  die  Auslosuno-  der 
Geisseln  entstelienden  Kosten  die 
grosse  Haverei. 

7.  Wenn  die  BesehafPiing  der 
zur  Deckung-  der  o-rossen  Haverei 
■n-ahrend  der  Eeise  erforderliehen 
Gelder  Verluste  und  Kosten  verur- 
sacht,  oder  -n-enn  durch  die  Aus- 
einandersetzung  unter  den  Be- 
theiligten  Kosten  entstehen, 

Diese  Verluste  und  Kosten  ge- 
horen  gleiehfalls  zur  grossen  Ha- 
verei . 

Dahin  werden  insbesondere  ge- 
zahlt  der  Verlust  an  den  wahrend 
der  Eeise  verkauften  Giitern,  die 
Bodmereipramie,  wenn  das  erfor- 
derliche  Geld  durch  Bodmerei 
aufoenommen  wird,  und  wenn  dies 
nicht  der  Fall  ist,  die  Priimie  fiir 
Versieherung  des  aufgewendeten 
Geldes,  die  Kosten  fiir  die  Ermit- 
telung  der  Schiiden  und  fiir  die 
Aufmaehung'  der  Eechnung'  iibor 
die  grosse  Haverei  (Dispache). 

Seemaiin  so  rdn  ung . 

Auszug  aus  §  61.  Tst  der  SchifPsmann 
bei  der  VertheidigiiDg  des  Schiffes  zu 
schaden  gekommen,  so  hat  er  auf  eine 
angemesseiie,  im  i^treitfalle  vom  seemann- 
sainte  vorlaufig  festzusetzende  Belohnung 
Anspnich. 

Auszug  aus  §  64.  Wird  der  Schiffsmann 
bei  Vertheidigung  des  Schiffes  getodtet, 
80  hat  der  Eheder  eine  angemessene, 
erforderliehen  Falles  von  dem  Eichter  zu 
bestimmende  Belohnuns'  zu  entrichten. 


6.  When  in  case  of  capture  of 
the  ship  by  enemies  or  pirates  the 
ship  and  cargo  are  ransomed, 

what  is  given  as  ransom,  to- 
gether with  the  expense  incurred 
for  the  maintenance  and  release  of 
the  hostages,  is  general  average. 

7.  When  the  raising  of  money 
rec^uired  during  the  voyage  for 
covering  general  average  occasions 
losses  and  expense,  or  when  ex- 
pense is  incurred  for  the  appor- 
tionment among  the  parties  inte- 
rested, 

these  losses  and  expenses  belong 
likewise  to  general  average. 

In  particular  these  include  the 
loss  on  goods  sold  during  the  voy- 
age, bottomry  premiums  when  the 
requisite  funds  have  been  raised 
on  bottomry,  and,  when  this  is  not 
the  case,  premiums  for  insuring 
the  amount  expended,  the  cost  of 
estimating  the  damage,  and  of 
making  up  the  general  average 
statement  (DisjDache). 


Seamen's  Act. 

Extract  from  §  61.  If  a  seaman  is  in- 
jured in  the  defence  of  the  ship,  he  is 
entitled  to  a  reasonable  compensation,  to 
be  detennined  provisionally,  in  case  of 
dispute,  by  the  Registrar  -  General  of 
Seamen. 

Extract  from  §  64.  If  a  seaman  is  killed 
in  the  defence  of  the  ship,  the  owner  is 
to  pay  a  reasonable  compensation,  to  be 
determined  if  necessary  by  the  judge. 


II 


THE  LAW  OF  GERMANY. 


529 


§  707.  Nicht  als  g-rosse  Haverei, 
sondern     als    besondere     Haverei 


werden  angesehen: 


1.  die  Verluste  und  Kosten, 
welche,  wenn  auch  wahrend  der 
Reise,  aus  der  in  Folge  einer  be- 
sonderen  Haverei  nothig  geworde- 
nen  Beschaffung  von  Geldern  ent- 
stehen ; 

2.  die      Eeclamekosten,     auch 
wenn     Schiff     und     Ladune-     zu- 
sammen    und    beide     rait 
reclaniirt  werden: 


Erfolg- 


3.  die  durch  Prangen  verur- 
sachte  Beschadigung  des  Schiffs, 
seines  Zubehors  und  der  Ladung-, 
selbst  Avenu,  um  der  Strandung 
oder  Nehmung  zu  entgehen,  ge- 
prangt  worden  ist. 

§  708.  lu  den  Fallen  der  gros- 
sen  Haverei  bleiben  bei  der  Sclia- 
densbereehnung  die  Bescliadigun- 
gen  und  Verluste  ausser  Ansatz, 
welclie  die  nachstehenden  Gegen- 
stande  betreffen: 

1.  nicht  unter  Deck  geladene 
Gviter;  diese  Vorschrift  findet 
jedoch  bei  der  Kiistenschifffahrt 
insofern  keine  Anwendung,  als 
Deckladungen  durch  die  Landes- 
gesetze  fiir  zulfis.sig  erklart  sind 
(§566)(/); 


^  707.  The  following  are  treated, 
not  as  general,  but  as  particular 


average : 


1.  losses  and  expenses  which, 
even  during  the  voyage,  result 
from  the  procuring  of  money 
Avhich  has  become  necessary  in  con- 
sequence of  a  particular  average; 


2.  expenses  of  reclaiming  (the 
property),  even  though  ship  and 
cargo  have  been  reclaimed  to- 
gether, and  both  with  success; 

3.  damage  done  to  the  ship,  its 
appurtenances,  and  the  cargo  by 
carrying  a  press  of  sail,  even 
when  carried  in  order  to  escape 
stranding  or  capture. 


§  708.  In  cases  of  general 
average,  damage  and  loss  Avhich 
are  sustained  by  the  undermen- 
tioned articles,  are  not  to  be  con- 
tributed for: 


1. 


goods  not  laden  under  deck; 


this  regulation  is,  however,  inap- 
plicable to  the  coasting- trade,  in 
so  far  as  in  regard  thereto  deck- 
loading  has  been  declared  by 
the  laws  of  the  several  States 
(§   r)66)  (/)  to  be  permissible; 


(/)  §  o66.  Ohne  Zustimmun^  des  Ab- 
laders  diiifen  dessen  Giiter  weder  auf  das 
VerdeL-k  verladen,  noch  an  die  Seiten  des 
Schiffs  grehiingt  werden. 

Die  Lundesgesetze  konnen  bestimmen, 
dass  diese  Vorschrift,  soweit  sie  die  Be- 


(/)  §  566.  Without  the  consent  of  the 
shipper  his  goods  must  neither  be  laden 
on  the  deck  nor  hung  at  the  sides  of  the 
ship. 

It  is  reserved  to  the  laws  of  the  different 
States  to  determine  that,  in  regard  to  the 


M  M 


.>30 


APPENDIX  J. 


2.    Giiter,    iiber   die    weder   ein  2.  goods  as  to  which  neither  a 

Conossement  ausgestellt  ist    noch   !  bill  of  lading  has  been  made  out, 
das      Manifest      oder      Ijadebuch  !  nor    any    mention    made    in    the 


Auskunft  giebt; 

3.  Kostbarkeiten,  Kunstgegen- 
stande,  Geld  und  Werthpapiere, 
die  dem  SehifEer  nieht  gehorig  be- 
zeichuet  worden  sind  (§  607)  (g). 


§  709.  Der  an  dem  Schifl:  oder 
dem  Zubehor  des  Schiffes  entstan- 
dene,  zur  grossen  Haverei  gehorige 
Schaden  ist,  wenn  die  Aiisbesser- 
ung  wilhrend  der  Reise  erfolgt, 
am  Ort  der  Ausbesserung  und  vor 
dieser,  sonst  an  dem  Ort,  wo  die 
Reise  endet,  durch  Sachverstan- 
dige  zu  ermitteln  und  zu  schiit/en. 
Die  Taxe  muss  die  Veran- 
schlagung  der  erforderlichen  Re- 
paraiurkosten  enlhalten.  Sie  ist, 
wenn  wahrend  der  Reise  ausge- 
bessert  wird,  fCir  die  Sehadens- 
berechnung  insoweit  massgebend, 
als  nicht  die  Ausfiihrungskosten 
unter  den  Anschlagssummen 
bleiben.  War  die  Aufnahme 
einer  Taxe  nieht  au-sfiihrbar,  so 
entscheidot  der  Betrag  der  auf 
die  erforderlichen  Reparaturen 
wirklich  verwendeten  Kosten. 


manifest  or  cargo-book; 

3.  valuables,  works  of  art, 
money,  and  securities  (papers  of 
value)  which  have  not  been 
properly  notified  to  the  master 
(§   607)  (5r). 

§  709.  Damage  belonging  to 
general  average,  which  has  been 
sustained  by  the  ship  or  its  appur- 
tenances, must  be  surveyed  and 
valued  by  experts,  if  the  repair 
takes  place  during  the  voyage,  at 
the  place  of  repairing  and  before 
repairing,  otherwise  at  the  place 
where  the  voyage  ends.  The 
estimate  must  contain  a  specifica- 
tion of  the  probable  cost  of  the 
requisite  repairs.  When  the  re- 
pairs are  to  be  made  during  the 
voyage,  this  estimate  is  conclusive 
so  far  as  the  actual  cost  of  re- 
pairing does  not  fall  below  the 
estimate.  If  the  obtaining  of  an 
estimate  is  not  practicable,  the 
amount  actually  expended  on  the 
requisite  repairs  is  conclusive. 


ladling-  des  Verdecks  betriSs,  auf  die 
Kiistenschifffahrt  keine  Anwetiduug 
findet. 

(//)  §  607.  Fiir  Kustbarkeiteu.  Kunst- 
ge^^enstiinde,  Geld  iiud  Werthpapiere 
haftet  der  Verfrachter  nur,  wenn  diese 
I'esehaflenheit  oder  der  Werth  der  Giiter 
bei  der  Abladung  dem  Schiffer  angegeben 
worden  ist. 


coasting  trade,  the  above  regulation,  so 
far  as  it  relates  to  the  lading  on  deck, 
shall  not  be  applicable. 

((/)  §  607.  For  valuables,  works  of  art, 
money,  and  papers  of  value,  the  shipowner 
is  only  answerable  in  case  their  deserii:)tion 
or  the  value  of  the  goods  has  at  the  time 
of  shipment  been  notified  to  the  master. 


THE  LAW  OF  GERMANY. 


531 


Soweit  die  Ausbesserung  nicht 
wahrend  der  Eeise  geschieht,  ist 
die  Abschiitzung  fiir  die  Schadens- 
berechnung'  ausschliesslieh  mass- 
gebend. 

§  710.  Der  naeh  Massgabe  des 
§  709  ermittelte  voile  Betrag  der 
Reparaturkosten  bestiinmt  die  zu 
leistende  Vergiitung,  wenn  das 
Schiff  zur  Zeit  der  Beseliiidigung 
noch  uicht  cin  voiles  Jahr  zu 
Wasser  war. 

Da-sselbe  gilt  von  der  Vergiitung 
fiir  einzelno  Theile  des  Schiffes, 
namentlieh  fiir  die  Metalhaut, 
sowie  fiir  einzelne  Theile  des 
Zubehors,  wenn  solche  Theile 
noch  nicht  ein  voiles  Jahr  in 
CTebrauch  waren. 

In  den  iibrigen  Fallen  wird  von 
dera  vollen  Betrage  wegen  des  Un- 
terschiedes  zwischen  alt  und  neu 
ein  Drittel,  bei  den  Ankerketten 
-ein  Sechstel,  bei  den  Ankern 
jedoch  nichts  abgezogen. 

Von  dem  vollen  Betrage  kommen 
ferner  in  Abzug  der  voile  Erlos 
oder  Werth  der  etwa  noch  vor- 
handenen  alten  Stiicke,  welche 
durch  neue  ersefzt  sind  oder  zu 
ersetzen  sind. 

Findet  ein  solcher  Abzug  und 
zugleich  der  Abzug  wegen  des  Un- 
terschiedes  zwischen  alt  und  neu 
statt,  so  ist  zuerst  dieser  letztere 
und  sodann  erst  von  dem  verblei- 
benden  Betrage  der  andere  Abzug 
/u  machen. 


So  far  as  repairing  during  the 
voyage  does  not  take  place,  the 
valuation  is  conclusively  taken  as 
the  measure  of  the  claim. 


§  710.  The  full  amount  of  the 
cost  of  repair,  computed  in  ac- 
coxdance  with  §  709,  determines 
the  compensation  to  be  allowed,  if 
the  ship,  at  the  time  of  the 
damage,  had  not  been  a  full  year 
afloat. 

The  same  rule  holds  good  of  the 
compensation  for  specific  portions 
of  the  ship,  particxilarly  for  the 
metal  sheathing,  as  well  as  for 
specific  parts  of  the  appurtenances, 
when  such  parts  have  not  yet  been 
in  use  for  a  full  year. 

In  other  cases  there  is  to  be 
deducted  from  the  full  amount,  on 
account  of  the  difference  between 
old  and  new,  one-third;  from 
chain  cables,  however,  one-sixth, 
and  from  anchors,  nothing. 

From  the  total  amount  there  are 
further  to  be  deducted  the  full  pro- 
ceeds or  value  of  any  yet  re- 
maining old  materials,  which  have 
been  or  are  to  be  replaced  with 
new. 

If  such  deduction,  and  likewise 
the  deduction  on  account  of  the 
difference  between  old  and  new, 
have  both  to  be  made,  this  latter 
is  to  be  made  first,  and  afterwards 
the  former  deduction  is  to  be  made 
from  the  remainder. 


§  711.  Die  Vergiitung  fiir  auf-  §    711.   The  indemnification  for 

.geopferte   Guter   wird   durch   den      goods  sacrificed  is  determined  by 
Marktpreis      bestimmt,      Avelchen      the  market  price  which  goods  of 

M  M  2 


532 


APPENDIX  J. 


Giifer  derselben  Art  und  Be- 
schaffenheit  am  Bestimmungsort 
bei  Beginn  der  Loschung  des 
Schiffes  habeii. 

In  Ermangelung  eines  Markt- 
preises,  oder  insofern  iiber  densel- 
ben  oder  iiber  dessen  Anwendunsr, 
insbesondere  mit  Hiicksicht  aiif  die 
Beschaffenheit  der  Giiter,  Zweifel 
bestehen,  wird  der  Preis  dureh 
Sachverstandige  ermittelt. 

Von  dem  Preise  kommt  in 
Abzug,  was  an  Fracht,  Zollen 
iind  Unkosten  in  Folge  des 
Verlustes  der  Giiter  erspart  wird. 

Zu  den  aufgeopferten  Giitern 
gehoren  aueh  diejenlgen,  welche 
zur  Deekung  der  grossen  Haverei 
verkauft  worden  sind.  (§  706, 
No.  2.) 

§  712.  Die  Vergiitung  fiir  Gii- 
ter, die  eine  zur  grossen  Haverei 
geborige  Beschadigiuig  erlitten 
haben,  wird  bestimmt  dui'ch  den 
Unterschied  zwischen  dem  dureh 
Sachverstandige  zu  ermittelnden 
Verkaufswerth,  welehen  die  Giiter 
im  beschiidigten  Zustande  am  Be- 
stimmungsorte  bei  Beginn  der 
Loschung  des  Schiffs  haben,  und 
dem  im  §  711  bezeichneten  Preise  j 
nach  Abzug  der  Zolle  und  Un- 
kosten, soweit  sie  in  Folge  der 
Beschadigung  erspart  sind. 

§  713.  Die  vor,  bei  oder  nach 
clem  Havereifall  entstandonen.  zur 
grossen  Haverei  nicht  gehorenden 
Werthsverringerungen  und  Ver- 
luste  sind  bei  Berechnung  der  Ver- 
giitung (§§  711,  712),  in  Abzug 
zu  bringen. 


the  same  kind  and  quality  have  at 
the  place  of  destination  on  the 
commencement  of  the  discharge. 

In  the  absence  of  a  market  price,, 
or  so  far  as  doubt  may  exist  con- 
cerning it  or  concerning  its  appli- 
cation, especially  with  regard  to 
the  quality  of  the  goods,  the  price 
is  to  be  estimated  by  experts. 

From  the  price  there  must  be 
deducted  whatever  amount  of 
freight,  duties,  and  expenses  have 
been  saved  in  consequence  of  the 
loss  of  the  goods. 

Goods  which  have  been  sold  to 
cover  the  expense  of  the  general 
average  are  also  included  among 
goods  sacrificed.    (§  706,  No.  2.) 

§  712.  The  indemnification  for 
goods  which  have  sustained  gene- 
ral average  damage  is  determined 
by  the  difference  between  the 
selling  value,  as  estimated  by 
experts,  which  the  goods  in  their 
damaged  condition  have  at  the 
place  of  destination  at  the  com- 
mencement of  the  discharge,  and 
their  value,  as  indicated  in  §  711 
after  deduction  of  duties  and  ex- 
penses so  far  as  these  have  been 
saved  in  consequence  of  the 
damage. 

§  718.  Diminutions  of  value  and 
losses,  not  belonging  to  general 
average,  which  have  taken  place 
before,  during,  or  after  the  average 
act  are,  in  calculating  the  indem- 
nification (§§  711,  712),  to  be  al- 
lowed for. 


THE  LAW  OF  GERMANY. 


533 


§  714.  Endet  die  Reise  filr 
Sf^hiff  mid  Ladung  nicht  im  Be- 
.stimmunoshafeu,  sonderu  an  einem 
aiidereii  Orte,  so  tritt  dieser  lelz- 
tere,  endet  sie  durcli  Verlust  des 
Sohiffs,  so  tritt  der  Ort,  wuliin  die 
Ladung  in  Sicherheit  gebracht  ist, 
f iir  die  Ermittelvuig der  \ergutung 
ail  die  Stelle  des 
■ortes. 


Bestimmungs- 


§  713.  Die  Vergutuug  t'iir  ent- 
gangene  Fracht  wird  bestiinmt 
durch  den  Fraclitbe'.rag,  welcher 
fur  die  aufgeopferten  Giiter  zuent- 
richten  gewesen  sein  wiirde,  wenn 
sie  mit  dem  Sehiff  au  dein  Orte 
ihrer  Bestimmung,  oder,  wenn  die- 
ser von  dem  Sehiff  nicht  erreicht 
wird,  an  dem  Orte  angelangt 
Miiren,  wo  die  Reise  endet. 

§  716.  Der  gesammte  Sehaden, 
^\elcher  die  grosse  Haverei  bildet, 
wird  iiber  das  Sehiff,  die  Ladung 
und  die  Frachfc  nach  Verhaltniss 
des  Werths  des  Schifies  und  der 
Ladung  und  des  Betrags  der 
Fracht  vertheilt. 

§  717.  Das  Sehiff  nebst  Zubehor 
trilgt  bei: 

1 .  Alit  dem  Werthe,  welchen  es 
in  dem  Zustande  am  Eude  der 
Reise  bei  Beginn  der  Loschung 
hat; 

2.  mit  dem  als  grosse  Haverei 
in  Rechnung  kommeudcn  Sehaden 
an  Sehiff  und  Zubehor. 

Von  dem  im  Abs.  1,  jSTo.  1,  be- 
zeichneten  Werth  ist  der  noch  vor- 
liandene  Werth  derjenigen  Ausbes- 


§  714.  If  the  voyage  ends  for 
both  ship  and  cargo  not  at  the 
])laec  of  destination  but  at  some 
other  place,  this  latter  place  takes 
the  place  of  the  port  of  destination 
as  regulating  the  indemnification; 
but  if  the  voyage  is  ended  by  the 
loss  of  the  ship,  the  place  t«  which 
the  cargo  is  brought  in  safety  must 
regulate  it. 

^  71.J.  The  iiideninification  for 
loss  of  freight  is  to  be  determined 
by  the  amount  of  freight  which 
would  have  been  payable  for  the 
goods  sacrificed  if  these  had,  with 
the  ship,  reached  the  place  of  theii' 
destination,  or,  if  this  was  not 
reached  by  the  ship,  at  the  place 
where  the  voyage  ended. 


§  716.  The  aggregate  loss  which 
forms  general  average  is  appor- 
tioned over  the  ship,  the  cargo,  and 
the  freight,  in  proportion  to  the 
values  of  the  ship  and  cargo  and 
the  amount  of  the  freight. 


§  717.  The  ship  witli  its  appur- 
tenances contributes : 

1.  On  the  vabie  which  it  has  in 
its  condition  at  the  end  of  the 
voyage  on  commencement  of  the 
discharge ; 

2.  on  the  amount  of  damage  to 
ship  and  appurtenances  coming 
into  account  as  general  average. 

From  the  value  indicated  b}' 
No.  1  is  to  be  deducted  the  still- 
existing  value  of  such  repairs  and 


534 


APPENDIX  J. 


serungen  und  Anschaffungen  ab- 
zuziehen,  welche  erst  nach  dem 
Havereifall  erfolgt  sind. 

§   718.   Die  Ladling-  tragt  bei: 

1.  mit  den  am  Eude  der  Reise 
bei  Begiuu  der  Loscliung  uoch  vor- 
handenen  Giitern,  oder,  wenn  die 
Reise  durch  den  Verlust  des  Schiffs 
endet  (§  714;,  mit  den  in  Sicher- 
heit  gebrachten  Gxitern,  soweit  in 
beiden  Fallen  diese  Giiter  sich  zux 
Zeit  des  Havereifalls  am  Bord  des 
SckifEs  oder  eines  Leichterfahrzeu- 
ges  (§  706,  No.  2)  befunden 
haben ; 


equipments  as  have  been  supplied 
subsequently  to  the  average  act. 


§ 


718.   The  cargo  contributes: 


1 .  on  the  goods  which  at  the  end 
of  the  voyage  on  commencement  of 
the  discharge  are  still  in  existence, 
or,  if  the  voyage  ends  by  the  loss 
of  the  ship  (§  714),  on  those  goods 
which  have  been  brought  into 
safety,  so  far  as  in  either  case  such 
goods  were  on  board  the  ship  or  a 
lighter  (§  706,  No.  2); 


2.    mit   den  aufgeopferten   Gil-  2.       on     the     goods     sacrificed 

tern(§  711).  (§  711). 

§     719.     Bei    Ermittelung    des  §     719.       In      estimating     the 

amount,  there  is  to  be  taken: 


Beitrags  kommt  in  Ansatz: 


1.  fiir  Giiter,  die  unversehrt 
sind,  der  ]\Iarktpreis  oder  der 
durch  Sachverstandige  zu  ermit- 
telnde  Preis  (§  711),  welchen  sie 
am  Ende  der  Reise  bei  Beginn  und 
am  Orte  der  Losehung  des  SchifEs, 
oder,  wenn  die  Reise  durch  Ver- 
lust des  Schiffs  endet  ( §  714),  zur 
Zeit  und  am  Orte  der  Bergung 
haben,  nach  Abzug  der  Fracht, 
Zolle  und  sonstigen  Unkusten; 

2.  fiir  Giiter,  die  wahrend  der 
Reise  verdorben  sind  oder  eine  zur 
grossen  Haverei  nicht  gehorige 
Beschadigung  erlitten  haben,  der 
durch  Sachverstandige  zu  ermit- 
telnde  Verkaufswerth  (§  712), 
welchen  die  Giiter  im  beschadigten 
Zustande  zu  der  unter  Ziffer  1  er- 


1.  for  goods  which  are  un- 
damaged, the  market  price,  or  '.he 
price  as  determined  by  experts 
(§  711),  which  the  goods  bear 
at  the  end  of  the  voyage  on  com- 
mencement of  the  discharge ;  or,  if 
the  voyage  is  ended  by  the  loss  of 
the  ship  (§  714),  which  they  bear 
at  the  place  and  time  of  their 
salvage ;  after  deduction  of  freight, 
duties,  and  other  charges; 

2.  for  goods  which  diu'Lng  the 
voyage  have  been  spoilt,  or  have 
suffered  damage  not  belonging  to 
general  average,  the  selling  value^ 
to  be  determined  by  experts 
(§  712;,  which  the  goods  in  their 
damaged  condition  bear  at  ihe 
time  and  place  mentioned  in  No.  1, 


THE  LAW  OF  GEKMANY. 


5135 


wahnten  Zeit  und  an  dem  dort 
bezeiehjieten  Orte  habeii,  nach 
Abzug  der  Fracht,  Zolle  und  son- 
stigen  Unkosten; 


after  deduction  of   freight,  duties, 
and  other  charges; 


3.  fiir    Giiter,    die    aufgeopfert  3.  for    goods    which  have  been 

worden  sind,  der  Betrag,  welcher  sacrificed,  the  amount  which  under 
dafur  nach  §  711  als  grosse  §  711  is  brought  into  account  for 
Haverei  in  Eechnung  kommt;  |  them  as  general  average; 


4.  fiir  Giiter,  die  eine  zur  gros- 
sen  Haverei  gehorige  Beschadi- 
gung  erlitten  haben,  der  nach 
ZifEer  2  zu  ermittelnde  AVerth, 
welchen  die  Giiter  im  beschadigten 
Zustande  liaben,  und  der  Werths- 
unterschied,  welcher  nach  §  712 
fiir  die  Beschadigung  als  grosse 
Haverei  in  Rechnung  kommt. 


§  720.  Sind  Giiter  geworfen, 
so  haben  sie  zu  der  gleichzeitigen 
oder  einer  spateren  grossen 
Haverei  im  Falle  ihrer  Bergung 
nur  beizutragen,  wenn  der  Eigen- 
thiinier  eine  Vergiitung  verlangt. 


4.  for  goods  which  have  suffered 
damage  belonging  to  general  aver- 
age, the  value  which,  as  defined 
under  No.  2,  those  goods  have  in. 
their  damaged  condition,  together 
with  the  difference  in  value  which, 
mider  §  712,  is  brought  into  ac- 
count for  the  damage  as  general 


average . 


§  720.  If  goods  are  thrown 
overboard,  these  are  to  contribute 
towards  a  simultaneous  or  subse- 
quent general  average,  in  case  they 
are  picked  up,  only  when  the  pro- 
prietor of  them  claims  contribu- 
tion. 


§  721.   Die  Frachtgelder  tragen  §   721.  Freight    contributes    on 

bei  mit  zwei  Drittel:  ;   two-thirds: 


1.  des  Bruttobetragcs,  welcher 
verdient  ist; 

2.  des  Betrages,  welcher  nach 
§  715  als  grosse  Haverei  in  Rech- 
nung kommt. 

Ueberfahrtsgelder  tragen  bei 
mit  dem  Eetrage,  welcher  im  Falle 
des  A'erlustes    des    Schiffs    einge- 


1.   of    the   gross   amount  which 
has  been  earned; 


2.  of  the  amoujit  which  under 
§  715  is  brought  into  account  as 
general  average. 

Passage-money  contributes  on 
the  amount  wliich  would  have  been 
forfeited    [not    earned    or    to    be 


536 


APPENDIX  J. 


I 


biisst  ware  (§  670)  (h),  nach  Ab- 
zug  der  Unkostea,  die  alsdann  er- 
spart  sein  -wiirden. 


§  722.  Haftet  auf  einem  bei- 
tragspfliehtigen  Gegenstand  eine 
durch  einen  spateren  Nothfall  be- 
uriindete  Forderung,  so  tragi  der 


Gegenstand 


niu'  mit  seinem 
Wertlie  iiaeh  Abzug  dieser  Forde- 
rung bei. 

§  723.  Zur  grossen  Haverei  tra- 
gen  nieht  bei: 


1 .  die    Kriegs- 
rathe  des  Schiffes; 


imd    Mundvor- 


refvmded]  in  case  of  the  loss  of 
the  ship  (§  670)  (h),  after  deduc- 
tion of  the  expenses  which  in  that 
case  would  have  been  escaped. 

§  722.  If  a  contributor}'  article 
is  liable  for  a  claim  founded  on  a 
subsequent  accident,  this  article 
contributes  only  on  its  value 
after  deduction  of  such  claim. 


§   723.   The    following    do    not 
contribute  to  general  average: 

1.  the    .ship's    ammunition    and 
victuals ; 


2.  die  Heuer  und  die  Habe  der 
Schi  ffsbesatzung ; 

3.  das  Eeisegut  der  Reiseuden. 
Sind  sachen  dieser  Art  aufgeop- 

fert  oder  haben  sie  einer  zur  gros- 
sen Haverei  gehorige  Beschiidig- 
ung  erlitten,  so  wird  dafiir  nach 
Massgabe  der  §§  711  bis  §  715 
Vergiitung  gewahrt;  fiir  Kostbar- 
keiten,  Kvinstgegenstande,  Geld 
und    Werthpapiere,    Avird    jedoch 


2.  the  wages  and  effects  of  the 
crew ; 

3.  Pa.ssengers'  luggage. 

If  articles  of  this  kind  liave 
been  sacrificed  or  have  suffered 
damage  belonging  to  general  aver- 
age, indemnification  is  due  for 
them  as  laid  down  in  §§  711 — 715; 
for  valuables,  works  of  art,  money, 
or  papers  of  value,  compensation 
is  only  due  in  case  the  same  shall 


(A)  §  670.  lu  alien  Fallen,  in  welchen 
zufolge  der  §§  668  und  669  der  Ueher- 
fahrtsvertraof  aufgelo»t  wird,  ist  kein 
Theil  zur  Entschadigung  des  anderen 
verpfliclitet. 

Ist  jedoch  die  Auflosung  erst  nach 
Antiitt  der  Reise  erfolgt,  so  hat  der 
Reisende  das  Ueberfahrtsgeld  nach  Ver- 
haltniss  der  zuriickgelegten  zur  ganzen 
Reise  zii  zahlen. 

Bei  der  Bei-echnung  des  zu  zahlenden 
Betrages  sind  die  Vorschriften  des  §  631 
masssrebend. 


{h)  j  670.  In  all  cases  in  which  under 
§§  668  and  669  the  contract  of  passage  is 
dissolved,  neither  party  is  liable  to  in- 
demnify the  other. 

If,  however,  the  dissolution  takes  place 
after  commencement  of  the  voyage,  the 
passenger  is  to  pay  passage-money  in 
proportion  to  the  part  of  the  voyage 
performed. 

The  amount  payable  is  determined  by 
the  rules  laid  do'wn  in  §  631. 


THE  LAW  OF  GERMANY. 


537 


Tiur  dann  Vergiitung  gewiihrt, 
wejin  dieselben  deni  Scliifl'er  o-c- 
hoi'ig  bezeichuet  siud  ( §  607) . 
Sachen  fiir  die  eine  Vergiitung 
gewiihrt  wird,  trageii  mit  dem 
^Verth  oder  dom  Werthsunter- 
schied  bei,  welclier  als  grosse  Ha- 
verei  iii  Rechnung  kommt. 

Die  ill!  §  708  erwiihiiten  Ge- 
geustande  .sind  beitragspfliclitig, 
■SO  weit  sie  gerettet  sind. 

Die  Bodmereigelder  sind  nicht 
boitragspflichtig. 

§  724.  Wenu  nach  dem  Haverei- 
fall  und  bis  ziini  Beginn  der 
Loschung  am  Ende  der  Reise 
•ein  beitragspflichtiger  Gegenstand 
ganz  verloren  geht  (§  704),  oder 
zum  Theil  verloren  geht  oder  im 
AVerthe  verringert,  insbesondere 
gemass  §  722  mit  einor  Forderiing 
belastet  wird,  so  tritt  eine  verhtilt- 
nissmiissige  Erhohung  der  von 
den  iibrigen  Gegensttinden  zu  en- 
trichtenden   Beitriige  ein. 

1st  erst  nach  dem  Beginn  der 
Loschung  der  Verlust  oder  die 
Werthsverringerung  erfolgt,  so 
geht  der  Beitrag,  welcher  auf  den 
Gegenstand  fiillt,  soweit  dieser  zur 
Berechtigung  des  Beitrags  unzu- 
reichend  gewordeu  ist,  den  Ver- 
gucungsberechtigten  verloren. 

§  725.  Die  Vergiitungsberech- 
tigten  haben  wegen  der  von  dem 
Schiff  und  der  Fracht  zu  entrich- 
tenden  Beitriige  die  Rechte  von 
Schiffsglaubigern.  Auch  in  Anseh- 
uug  der  beitragspflichtigen  G titer 
steht  ihnen  an  den  einzelnen 
Giitern  wegen  des  von  dieson  zu 


have  been  properly  notified  to  the 
master  (§  G07).  Articles  for 
which  indemnification  is  due,  con- 
tribute on  the  value  or  difference 
in  value  which  is  brought  into 
account  as  general  average. 


The  articles  mentioned  in  §  708 
are  liable  to  contribute  so  far  as 
they  have  been  saved. 

Monej^  lent  on  bottomry  is  not 
liable  to  contribute. 

§  724.  If,  after  the  average-act, 
and  up  to  the  beginning  of  the 
discharge  at  the  end  of  the  voyage, 
a  contributory  article  is  entirely 
lost  (§  704),  or  is  partly  lost  or 
diminished  in  value,  in  particular 
if  it  is  liable  to  a  claim  under 
§  722,  there  must  be  a  propor- 
tionate increase  in  the  amounts  to 
be  home  by  the  remaining  articles. 


If  such  loss  or  diminution  of 
value  does  not  occur  till  after  the 
beginning  of  the  discharge,  the 
amount  of  contribution  which  falls 
upon  such  article,  so  far  as  the 
latter  has  become  insufficient  to 
bear  it,  must  fall  on  the  party 
claiming  compensation. 

§  72").  Those  entitled  to  indem- 
nification have,  in  respect  of  the 
contribution  due  from  the  ship  and 
freight,  the  rights  of  ship's  cre- 
ditors. Also  as  against  the  goods 
liable  to  contribute,  the  said 
parties  have  a  lien  on  the  goods  of 
each  severally  in  respect  of  their 


538 


APPENDIX 


entriclitenden  Beitrag-es  eiu  Pfand- 
recht  zu.  Das  Pfaudrecht  kanii 
jedoeh  nach  der  Auslieferung-  der 
Giiter  nicht  zum  Nachtheil  des 
dritten  Erwerbers,  weleher  den 
Besitz  in  g'utem  Glauben  erlangt 
hat,  geltend  gemacht  werden. 

§  726.  Eine  personliehe  Ver- 
pflichtung-  zur  Eutriclitung-  des 
Beitrages  wird  durch  den  Have- 
reifall  an  sich  nicht  begriindet. 

Der  Empfanger  beitragspflich- 
tiger  Giiter  wird  jedoeh,  wenn  ihm 
bei  der  Annahme  der  Giiter 
bekannt  ist,  dass  davon  ein  Bei- 
trag  zu  entrichten  ist,  fiir  den 
letzteren  bis  zum  Werthe,  welchen 
die  Giiter  zur  Zeit  ihrer  Auslie- 
ferung haben,  insoweit  personlich 
verpflichtet,  als  der  Beitrag,  falls 
die  Auslieferung  nicht  erfolgt 
ware,  aus  den  Giitern  hutte  ge- 
leistet  werden  konnen. 


respective  contributions.  This 
lien,  however,  cannot,  after  de- 
livery of  the  goods,  be  enforced  to 
the  prejudice  of  a  third  party  who 
has  come  into  possession  of  them 
in  good  faith. 


§  726.  A  personal  liability  for 
payment  of  contribution  does  not 
arise  from  a  case  of  general  aver- 
age in  itself. 

The  receiver  of  contributory 
goods,  however,  when  it  is  made 
known  to  him  on  his  receipt  of  the 
goods  that  a  contribution  is  due, 
is  so  far  personally  liable  for  the 
same,  up  to  the  value  which  the 
goods  had  at  the  time  of  delivery 
to  him,  as  the  contribution,  if  the 
delivery  had  not  taken  place, 
might  have  been  recovered  out  of 
the  goods. 


§    727.    Die    Feststellung    und  §   727.   The  settlement  and  ap- 

Vertheilung  der    Schaden  erfolgt  portionment  of  the  losses  is  to  be 

andem  Bestimmungsort  und,  wenn  made  at  the  place  of  destination, 

dieser  nicht  erreicht  wird,  in  dem  or,  if  this  is  not  reached,  at  the 

Hafen,  wo  die  Reise  endet.  place  where  the  voyage  ends. 


§  728.  Der  Schifier  ist  ver- 
pflichtet, die  Aufmachung  der  Dis- 
paehe  ohne  Verzug  zu  veranla.ssei] . 
Handelt  er  dieser  Verpflichtung 
zuwider,  so  macht  er  sich  jedem 
Betheiligten  verant wor tlieli . 

Wird  die  Aufmachung  der  Dis- 
pache  nicht  rechtzeitig  veranlasst, 
so  kann  jeder  Betheiligte  die  Auf- 
machung in  Antrag  bringen  und 
betreiben. 


§  728.  It  is  the  duty  of  the 
master  to  have  the  adjustment 
(Dispache)  drawn  up  without 
delay.  If  he  acts  contrary  to  this 
dut}',  he  makes  himself  answer- 
able to  each  contributor. 

If  the  drawing  up  of  the  adjust- 
ment is  not  done  with  proper  dis- 
patch, each  contributor  is  entitled 
to  bring  it  under  notice  and  urge 
on  its  completion. 


THE  LAW  OF  GERMANY, 


Olii^ 


§  729.  Im  Gebiete  dieses 
Gesetzbuchs  wild  die  Dispache 
dui'ch  die  ein-  fiir  allemal  bestell- 
ten  oder  in  deren  Ermangelung 
durch  die  vom  Gericht  besonders 
ernannten  Personen  (Dispach- 
eure)  aufgemacht. 

Jeder  Betheiligte  ist  verpflich- 
tet,  die  zur  Aufmachung  der  Dis- 
pache erforderlicheu  Urkunden, 
soweit  er  sie  zii  seiner  Verfiig-ung 
hat,  namentlich  Cliartepartien, 
Conossemente  und  Facturen,  dem 
Dispacheur  mitzutheilen. 

§  730.  Fur  die  von  dem  Schiff 
zu  leistenden  Beitrage  ist  den 
Ladungsbetheiligten  Sieherheit  zu 
bestellen,  bevor  das  Sehiff  den  ' 
Hafen  verlassen  darf,  in  welchera 
nach  §  727  die  Feststellung  und 
Vertheilung  der  Schaden  zu  er- 
folgen  hat. 


§  729.  Witliin  the  scope  of 
this  Code  adjustments  are  to  be 
made  out  by  persons  irrevocably 
appointed  for  the  purpose,  or  in  the 
absence  of  such  by  persons  speci- 
ally named  by  the  Court  (Dis- 
pacheurs) . 

Every  party  interested  is  bound 
to  communicate  to  the  adjuster  the 
documents  requisite  for  this  pur- 
pose, especially  charter-parties, 
bills  of  lading,  and  invoices. 


§  7oO.  For  the  contribution  due 
from  the  ship  secvirity  is  to  be 
given  to  the  parties  interested  in 
the  cargo,  before  the  ship  can  leave 
the  port  in  which,  under  §  727, 
the  settlement  and  apportionment 
of  the  lo.sses  arc  to  be  made. 


§  731.  Der  Sehiffer  darf  Giiter, 
auf  denen  Havereibeitrage  haften, 
vor  Berichtigung  oder  Sicherstel- 
lung  der  letztereu  (§  615)(?),  nicht 
ausliefern,  widrigenfalls  er,  un- 
beschadet  der  Haftung  der  Giiter, 
fiir  die  Beitrage  personlich  verant- 
wortlich  wird. 


§  731.  The  master  must  not 
deliver  up  goods  liable  to  average 
contribution  before  payment  of  or 
security  given  for  the  same 
(§  615)  (i),  otherwise,  without 
prejudice  to  the  liability  of  the 
goods,  he  becomes  personally 
answerable  for  the  contributions. 


(i)  §  615.  Der  Verfrachter  ist  nicht 
verpflichtet,  die  Giiter  friiher  aiiszuliefern, 
als  bis  die  darauf  hal'tenden  Beitiau-e  zur 
grossen  Haverei,  Bergungvs-  und  Hiilf.s- 
kosten  imi  Rodmereigelder  bezahlt  oder 
sicherge-stellt  sind. 

Ist  die  Vei'bodrmmg  fiir  Rechuung  des 
Rheders  gescheheu,  so  gilt  die  vorstehende 
Bestimmung  unbeschadet  der  Verjjilicli- 
tung  des  Verfrachters,  fiir  die  Befreiung 
der  Giiter  von  der  Bodmereischuld  noch 
vor  der  Anslieferung  zu  sorgen. 


(i)  §  615.  The  shipowner  is  not  bound 
to  give  delivery  of  the  goods  until  the  con- 
tributions attacliiug  tlit-retu  for  general 
average,  cost  of  salvage  and  assistance, 
and  money  borrowed  on  bottomry,  have 
been  paid  or  secured. 

If  the  bottomrying  has  been  on  account 
of  the  shijounor,  the  ]>r('cediDg  regula- 
tion is  without  prejudice  to  the  liability 
of  the  shipowner  to  see  to  the  releasing 
of  the  goods  t'rniii  the  bottomry  debt  before 
the  discharge. 


540 


APPENDIX  J. 


Hat  der  Eheder  die  Handluugs- 
weise  des  Sehiffers  angeordnet, 
so  kommeu  die  Vorschrifteu  des 
§  512,  Abs.  2,  3(k)  zur  Anwend- 


ung. 


Das  an  den  beitragspflichtigen 
Giitern  den  Vergutiingsberechtig- 
ten  zustehende  Pfandrecht  wird 
fiir  diese  durch  den  Verfrachter 
ausgeiibt. 

Die  Geltendniaehung  des  Pfand- 
rechts  durch  den  Verfrachter  er- 
folgt  nach  Massgabe  der  Vor- 
schriften,  die  fiir  das  Pfandrecht 
des  Verfrachters  wegen  der  Fracht 
und  der  Avislagen  gelteu. 

§  732.  Hat  der  Schiffer  zur 
Fortsetzimg  der  Raise,  jedoch  zum 
Zweck  einer  nicht  zur  grossen 
Haverei  gehorenden  Aufwendung, 
die  Ladiuig  verbodmet  oder  iiber 
einen  Theil  derselben  durch  Ver- 
kauf  oder  durch  Verwendung  ver- 
fiigt,  so  ist  der  Verlust,  den  ein 
Ladungsbetheiligter  daduxch  er- 
leidet,     dass      er      wegen     seiner 


If  the  master's  mode  of  action 
has  been  directed  by  the  owner, 
the  regulations  of  the  second  and 
third  paragraphs  of  §  512  (k) 
come  into  operation. 

The  lien  which  the  parties  en- 
titled to  contribution  have  against 
the  contributors  is  exercised  on 
their  behalf  by  the  shipowner. 

The  exercise  of  this  lien  b}^  the 
shipowner  is  governed  by  the  pro- 
visions which  regulate  the  lien  of 
the  shipowner  for  freight  and  dis- 
bursements. 


§  732.  If  the  master,  for  the 
prosecution  of  the  voyage,  but  for 
the  purpose  of  an  expenditure  not 
belonging  to  general  average,  has 
bottomried  the  cargo,  or  has  dis- 
posed of  a  part  thereof  by  sale  or 
by  using  it,  in  that  case  the  loss 
which  a  proprietor  of  cargo  may 
sustain  from  the  circumstance  that 
his  claim  for  compensation  against 


(k)  §  512.  Diese  Haftung  des  Sehiffers 
besteht  nicht  nur  gegenuber  dem  Rheder, 
soudern  uuch  gegeniiber  dein  Befraohter, 
Ablader  und  Ladungsempfanger,  dem 
Reisenden,  der  Schiff.sbcsatzuug  und 
derajenigen  Sebiffsgliiubiger,  dessen  For- 
deiung  aus  eineui  Creditgeschiift  {§  528) 
entstanden  ist,  insbesondere  dem  Bod- 
mereiglaubiger. 

Der  Schiffer  wird  dadurch,  dass  er  avif 
Anweisung  des  Rheders  gehandelt  hat, 
den  iibrigen  vorgenannten  Personen  ge- 
geniiber von  der  Haftung  nicht  befreit. 

Durch  eine  solche  Anweisung  wird  auch 
der  Rheder  personlich  verpflichtet,  wenn 
er    bei    Ertheilung    derselben   von    dem   | 
Sachverhaltniss  unterrichtet  war.  ' 


{k)  §  512.  This  liability  of  the  master 
exists,  not  only  as  towards  the  owner, 
but  likewise  as  towards  the  charterer, 
shipper,  and  consignee,  the  passenger, 
the  crew,  and  that  creditor  of  the  ship 
whose  claim  has  arisen  out  of  a  credit 
transaction  (§  528),  and  particularly  the 
lender  on  a  bottomry. 

The  master  is  not  freed  from  liability, 
as  towards  the  above-named  persons,  by 
the  circumstance  that  he  has  acted  under 
the  directions  of  the  owner. 

By  giving  such  directions  the  owner 
likewise  becomes  personally  answerable, 
if  at  the  time  of  giving  them  he  was 
informed  of  the  position  of  affairs. 


THE  LAW  OF  GERMANY. 


541 


Ersatzanspriiche  aus  SchifE  und 
Fracht  gar  nicht  oder  nieht  voll- 
staudig  befriedigt  werden  kann 
(§§  o40,  541,  612)  (I),  voB  sammt- 
liehen  Laduno-sbetheilig'ten  nach 
den  Grundsiitzeii  der  grosseii  Ha- 
verei  zu  tragen. 

Bei  der  Erinitteluiio-  de.s  \'er- 
lustes  ist  in  dem  Verhtiltniss  zu 
den  Ladungsbetheiligten  in  alien 
Fiilleji,  namentlich  audi  im  Fallo 


the  .ship  and  freight  cannot  be 
satisfied  or  completely  satisfied 
(;§§  o40,  o41,  612j  (I),  is  to  be 
i  borne  by  all  the  parties  interested 
in  the  cargo  according  to  the  prin- 
ciples of  general  average. 

In  adjusting  the  loss,  the  rates 

of     compensation    laid    down    in 

I  §  711  are,  as  between  the  parties 

interested  in  the  cargo,  to  be  fol- 


{!)  §  540.  Liegt  der  Fall  einer  grossen 
Haverei  nicht  vor,  so  ist  der  Schiffer  zur 
Verbudmung  der  Ladung  oder  zur  Ver- 
fiigung  liber  Ladungstheile  durch  Ver- 
kauf  oder  Verwendung  nur  befugt,  wenn 
er  dem  Bediirfniss  auf  anderera  Wcge 
nicht  abhelfen  kaiin,  oder  wenn  die  Wuhl 
eines  anderen  Mittels  einen  unverhalt- 
nissmiissigen  Schaden  fiir  den  Rheder 
znr  Folge  haben  wlirde. 

Auch  in  diesen  Fallen  kann  er  die 
Ladung  nur  zusammen  mit  dem  SchifP 
und  der  Fracht  verbodmen.  (§  680, 
Abs.  2.) 

Er  hat  die  Verbodmung  vor  dem  Ver- 
kauf  zu  wahlen,  es  sei  denn,  dass  die 
Verbodmung  einen  unverhiiltnissmassigen 
Schaden  fiir  den  Rheder  zur  Folge  haben 
wiirde. 

§  511.  Die  Verbodnmng  der  Ladung 
oder  die  Verfiigung  iiber  Ladungstheile 
durch  Verkauf  oder  Verwendung  wird  in 
den  Fallen  des  §  .540  als  ein  fiir  Rechnung 
des  Rheders  abgeschlossenes  Credit- 
geschaft  {^  528,  754,  No.  6)  angesehen. 

§  612.  Die  Vorschriften  des  §  611 
find  en  auch  auf  diejenigen  Giiter  An- 
wendung,  fiir  welche  der  Rheder  nach 
§  541  Ersatz  leisten  muss. 

Uebersteigt  im  Falle  der  Verfiigung 
iiber  die  Giiter  durch  Verkauf  der  Reiu- 
erlos  den  im  §  6 1 1  bezeichneten  Preis,  so 
tritt  an  Stelle  des  letzteren  der  Reinerlos. 


{l)  §  540.  If  the  case  is  not  one  of  general 
average,  the  master  is  not  authorized  to 
bottomry  the  cargo,  or  to  dispose  of  any 
part  of  it  by  sale  or  by  using  it,*  unless 
the  need  for  funds  cannot  be  met  in  any 
other  way,  or  unless  the  choice  of  some 
other  means  would  lead  to  a  dispropor- 
tionate loss  to  the  shipowner. 


Even  in  these  cases  he  can  only  bot- 
tomry the  cargo  conjointly  with  the  ship 
and  freight.     (§  S80,  par.  2.) 

He  must  resort  to  bottomry  in  prefer- 
ence to  sale,  even  though  the  bottomrying 
should  lead  to  a  disproportionate  loss  for 
the  shipowner. 

^  541.  The  bottomrying  of  the  cargo, 
or  disposing  of  a  part  thereof  by  sale  or 
using  it,  is  to  be  regarded,  in  cases  within 
^  540,  as  a  loan  transaction  concluded  on 
behalf  of  the  shipowner  (§  528  and  §  754, 
No.  6). 

§  612.  The  provisions  of  J  611  are  like- 
wise applicable  to  those  goods  for  which 
the  shipowner,  under  §  541,  must  make 
compensation. 

If  in  the  case  of  disposing  of  goods  by 
sale  the  net  proceeds  of  them  shall  exceed 
the  value  indicated  in  §  611,  the  not  pro- 
ceeds take  the  place  of  the  latter. 


*  E.(/.,  in  the  way  of  barter,  or  giving  it  in  kind  for  salvage,  or  by  expending  specie 
belonging  to  the  cargo. 


M2 


APPENDIX  J. 


des  §  612,  Abs.  2,  die  in  §  711 
bezeichnete  Vergiitung-  massge- 
bend.  Mit  dem  Werthe,  duxch 
-welchen  diese  Vergiitung  bestimmt 
-wird,  tragen  die  verkauf  ten  Giiter 
auch  zu  einer  etwa  eintretenden 
grossen  Haverei  bei  (§  718). 

§  733.  Die  in  den  Fillleii  der 
§§  635  (?w),  732  zu  entrichtenden 
Beitriige  und  eintretenden  Ver- 
giitungen  stehen  in  alien  recht- 
lichen  Beziehungen  den  Beitragen 
und  Vergiitungen  in  den  Fallen 
der  grossen  Haverei  gleich. 


lowed  in  all  cases,  particularly  in 
the  case  of  §  612,  par.  2.  Upon 
the  value  by  which  this  compen- 
sation is  fixed,  the  goods  sold 
contribute  likewise  towards  any 
general  average  that  may  occur 
(§  718). 

§  733.  The  contributions  to  be 
paid  and  the  indemnifications  to 
be  allowed  in  cases  within 
§§  635  (m)  and  732  correspond  in 
all  legal  relations  with  the  con- 
tributions and  indemnifications  in 
cases  of  g-eneral  average. 


SECTION  i.—BEGCL  AT  TON'S  AS  TO  THE  PAYMENT  OF  FREIGHT. 

§  580.  Before  a  voyage  has  been  commenced,  whether  it  be  a  single 
or  a  compound  voyage,  the  charterer  may  withdraw  from  the  contract 
on  pa3'ing  one-half  of  the  stipulated  freight  as  dead-freight.  In  apply- 
ing this  provision,  the  voyage  shall  be  considered  as  having  commenced 
— 1,  When  the  charterer  has  already  given  the  master  his  sailing- 
orders;  2,  When  the  charterer  has  already  delivered  the  cargo  wliolly 
or  in  part,  and  the  lay-days  have  expired. 


(w)  §  635.  Muss  das  Sehiff,  nachdem 
es  die  Ladung-  eingenommen  hat,  vor 
Antritt  der  Reise  in  dem  Abladungshafen 
oder  nach  Antritt  derselben  in  einem 
Zwischen-  oder  Nothhafen  in  Folge  eines 
der  in  ^  629  ers-ahnten  Ereignisse  liegen 
bleiben,  so  werden  die  Kosten  des  Aiifent- 
halts,  auch  wenn  die  Erforderuisse  der 
grossen  Haverei  nicht  vorliegen,  iiber 
Sehiff,  Fracht  und  Ladung  naeh  den 
Orundsatzen  der  grossen  Haverei  vertheilt, 
gleichviel  ob  demnachst  der  Vertrag 
aufgehoben  oder  vollstandig  erfiillt  wird. 
Zu  den  Kosten  des  Aufenthalts  werden 
iille  im  §  706,  No.  4,  Abs.  2,  aufgefiihrten 
Kosten  gezahlt,  diejenigen  des  Ein-  und 
Auslaufens  jedoch  nur,  wenn  wegen  des 
Hindernisses  ein  Nothhafen  angelaufen 
ist. 


(;«)  §  635.  If  the  ship,  after  it  has 
taken  in  the  cargo,  is  necessarily  detained, 
either  before  entering  on  the  voyage  in 
the  port  of  loading,  or  subsequently  at  an 
intermediate  port  or  port  of  refuge,  in 
consequence  of  any  of  the  occurrences 
mentioned  in  ^  629,  in  that  case  the  ex- 
penses of  her  stay,  even  though  the  requi- 
sites of  a  general  average  are  not  present, 
are  to  be  divided  over  ship,  freight,  and 
cargo,  according  to  the  principles  of 
general  average,  no  matter  whether  the 
contract  is  thereby  put  an  end  to,  or 
is  completely  fulfilled.  As  expenses  of 
the  stay  are  to  be  accounted  all  those 
enumerated  in  §  706,  No.  4,  par.  2  ;  those 
of  the  going  in  and  out,  however,  only  in 
the  case  where  a  port  of  refuge  has  been 
entered  on  account  of  the  hindrance. 


THE  lAW  OF  GERMAXY.  543 

§  582.  After  the  voyage  has  been  commenced,  within  the  meaning 
of  §  .380,  the  charterer  can  only  Avithdraw  from  the  agreement  and 
demand  the  unloading  of  the  goods  on  paying  the  full  freight,  as  "well 
as  all  other  claims  of  the  shipowner  (§  614J  («),  and  on  paying  or 
securing  the  claims  mentioned  in  §  615  (o).  In  case  of  such  unload- 
ing, the  charterer  shall  not  only  pay  the  additional  expenses  thereby 
incurred,  but  also  indemnify  the  shipowner  for  the  loss  caused  by  the 
delay.  The  shipowner  is  not  bound  to  alter  the  voyage  or  to  put  into 
a  port  for  the  purpose  of  unloading  the  goods. 

§  616.  The  shipowner  is  not  obliged  to  accept  the  goods  in  payment 
■of  the  freight,  whether  they  are  destroyed  or  damaged  or  not.  When, 
however,  vessels  filled  with  liquids  have  leaked  during  the  course  of 
the  voyage  to  such  an  extent  that  they  have  become  altogether  or  for 
the  most  part  empty,  they  may  be  left  to  the  shipowner  in  payment  of 
the  freight  and  of  his  other  claims  (§  614). 

§  617.  No  freight  is  due  for  goods  lost  by  any  accident;  and  any 
freight  advanced  shall  be  returned,  unless  an  agreement  to  the  contrary 
has  been  made. 

§  630.  The  contract  of  affreightment  is  terminated  when,  after  the 
commencement  of  the  voyage,  the  vessel  is  lost  by  an  unforeseen  inci- 
dent (§  628,  par.  1,  No.  1;  (p).  The  charterer  shall,  however,  pay 
such  proportion  of  the  freight  for  the  goods  saved  or  rescued  as  the 
part  of  the  voj^age  actually  performed  bears  to  the  entire  voyage  (dis- 
tance freight).  No  claim  for  distance  freight  shall  exceed  the  value 
of  the  goods  saved. 

§  631.  In  the  calculation  of  the  distance  freight  there  must  betaken 
into  consideration  not  only  the  proportion  of  the  distance  already  per- 


(n)  ■  §  614.  By  taking  delivery  of  the  goods,  the  consignee  becomes  liable  to  pay  the 
freight  and  all  other  charges  in  conformity  with  the  contract  of  affreightment  or  bill  of 
lading,  on  the  basis  of  which  the  delivery  is  made  ;  and,  further,  to  pay  demurrage,  if 
any,  to  refund  customs'  duties  and  other  advances,  and  to  fulfil  any  other  obligations 
devolving  upon  him.  The  shipowner  .shall  deliver  the  goods  to  the  consignee  on 
payment  of  the  freight  and  on  fulfilment  of  all  other  obligations. 

(o)  §  615.  The  shipowner  is  not  bound  to  deliver  the  goods  before  the  amounts  due 
from  the  same  for  general  average,  .salvage,  assistance,  or  bottomry,  have  been  paid, 
or  .'it'curity  given  for  the  amount.  If  a  bottomry  bond  has  been  given  for  account  of 
the  shipowner,  the  above  regulation  holds  good  in  spite  of  the  shipowner's  obligation 
to  free  the  goods  from  their  liability  to  the  bottomry  before  they  are  delivered. 

{p)  §  629.  The  contract  of  affreightment  is  at  an  end,  and  neither  party  is  bound 
to  indemnify  the  other,  if,  before  the  commencement  of  the  voyage,  and  through  an 
unforeseen  incident,  the  vessel  is  lost ;  particularly,  if  it  is  lost  by  accident ;  if  it  has 
been  condemned  as  irreparable  or  not  worth  repairing  (§  479),  and  if,  in  the  latter 
case,  it  is  sold  without  delay  by  public  auction  ;  if  it  is  captured  by  pirates ;  if  it  is 
seized  or  detained,  and  condemned  as  good  prize. 


544  APPENDIX  J. 

formed  to  that  still  to  be  completed,  but  likewise  the  comparative 
proportion  of  expenditure  in  cost,  time,  danger,  and  labour  ordinarily 
connected  with  the  part  of  the  voyage  already  performed,  as  compared 
with  that  still  to  be  completed. 

§  632.  Par.  1.  The  dissolution  of  the  contract  of  afireightment 
makes  no  alteration  in  the  obligation  of  the  master  to  take  care  of  the 
cargo  in  the  absence  of  the  parties  interested,  even  after  the  loss  of  the 
vessel  (§§  535 — 537)  (gj.  The  master  is,  therefore,  justified  and 
obliged,  and  in  urgent  cases  even  without  previous  enquirv,  as  circum- 
stances may  require,  either  to  forward  the  cargo  to  the  port  of  destina- 
tion in  another  vessel  for  account  of  the  parties  concerned,  or  to  have  it 
stored  and  sold;  and,  in  case  of  its  being  forwarded  or  stored,  to  sell  a 
portion  thereof  for  the  purpose  of  realizing  the  funds  necessary  therefor 
and  for  its  preservation,  or,  in  case  of  its  being  forwarded,  to  take  a 
bottomry  bond  on  the  whole  or  a  part  of  it.  Par.  2.  The  master  is, 
however,  not  oblig-ed  to  part  with  the  cargo,  or  to  deliver  it  to  another 
master  for  the  purpose  of  its  being  forwarded,  unless  the  distance 
freight  as  well  as  all  other  claims  of  the  shipowner  (§  614),  and  the 
contributions  due  from  the  cargo  for  general  average,  salvage,  and 
assistance  and  bottomrj^  have  been  paid  or  secured. 

The  shipowner  is  responsible  for  the  fulfilment  of  the  duties  devolv- 
ing on  the  master,  according  to  the  first  paragraph  of  this  article,  to 
the  extent  of  the  value  of  the  ship,  so  far  as  anything  has  been  saved 
of  it,  and  of  the  freight. 


(5)  §  535.  The  master  shall  take  every  possible  cire  of  the  cargo  during  the 
voyage  in  the  interest  of  those  concerned  in  it.  When  special  measures  are  required  in 
order  to  avoid  or  lessen  a  loss,  it  is  his  duty  to  protect  the  interest  ot  those  concerned 
in  the  cargo  as  their  representative  :  to  take  their  instructions  if  possible,  and,  so  far  as 
circumstances  admit,  to  carry  the  same  into  effect ;  otherwise,  however,  to  act  according 
to  his  own  discretion,  and  generally  to  take  every  possible  care  that  those  interested  in 
the  cargo  are  speedily  informed  of  such  occurrences,  and  of  the  measures  thereby 
rendered  necessary.  He  is  specially  authorized  in  such  cases  to  discharge  the  whole  or 
a  portion  of  such  cargo  ;  in  extreme  cases,  if  on  account  of  imminent  deterioration  or 
for  other  causes,  a  considerable  loss  cannot  otherwise  be  averted,  to  sell  or  hypothecate 
it  for  the  purpose  of  providing  means  for  its  preservation  and  further  transport;  to 
reclaim  it  in  case  of  capture  or  detention ;  and,  if  it  shall  have  been  otherwise  with- 
drawn from  his  charge,  to  take  all  judicial  and  extra-judicial  steps  for  its  recovery. 

§  536.  When  the  prosecution  of  the  voyage  in  its  original  direction  is  prevented 
by  an  accident,  the  master  is  at  liberty  either  to  continue  the  voyage  in  another 
direction  or  to  suspend  it  for  a  longer  or  shorter  period,  or  to  return  to  the  port  of 
departure,  according  to  circumstances  and  to  the  instructions  received,  which  latter 
are  to  be  adhered  to  as  closely  as  possible. 

§  537.  Even  in  the  cases  referred  to  in  §  535,  the  master  has  no  right  to  conclude 
any  business  transaction  upon  the  personal  credit  of  the  parties  interested  in  the  cargo, 
unless  by  virtue  of  a  power  of  attorney  authorizing  him  to  do  so. 


545 


THE  LAW  OF  GERMANY. 


SECTION  n.— REGULATIONS  AS  TO   STATUTORY 
LIMITATIONS. 

According  to  §§  901 — 904,  claims  against  the  ship  for  contribu- 
tions to  g'cneral  average  are  only  in  force  for  one  year.  This  period 
of  limitation  is  reckoned  from  the  expiration  of  the  year  in  which  the 
delivery  of  the  goods  has  taken  place.  One  year  is  also  the  period 
of  limitation  for  the  claims  for  which  the  goods  are  responsible  with 
respect  to  bottomry  loans,  contributions  to  general  average,  salvage 
and  assistance  expenses,  as  also  for  all  claims  arisen  out  of  personal 
liabilities  for  these  loans,  contributions,  and  expenses. 


NOTES. 

For  convenience  of  reference,  these  notes  are  divided  under  heads 
corresponding  with  the  chapters  of  this  book,  which  set  forth  the 
English  law  on  this  subject:  — 

1.  General  Frinciples.    (Chap.  I.) 

The  provisions  of  the  German  Code  which  fall  under  this  head  are  of  the  prin- 
contained  in  §§  700—703.  There  is  nothing  in  these  provisions  jjj^^  ^^^''^^^i^ 
requiring  comment,  except  §  703,  where  it  is  said  that  there  can  be  must  be  saved, 
no  general  average,  except  when  both  the  ship  and  the  cargo,  each 
either  wholly  or  in  part,  have  actually  been  saved.  This  rule  leads 
to  results  which  one  may  almost  say  are  contrary  to  common  sense. 
If,  for  example,  a  vessel  is  stranded,  and  is  saved  by  throwing  over- 
board the  whole  of  her  cargo;  or  is  on  fire,  and  saved  by  being- 
scuttled,  the  effect  of  which  is  to  wash  out  the  entire  cargx)  of  sugar 
or  salt;  or  if  in  time  of  war  a  ship  with  neutral  g-oods  on  board, 
having  sprung  a  leak,  is  run  for  the  common  safety  into  an  enemy's 
port,  where  the  cargo  is  safe,  but  the  ship  condemned — in  cases  of 
this  kind  there  is  no  general  average  according  to  the  text  of  the 
law.  The  party  whose  property  has  necessarily  been  sacrificed  or 
who  has  reasonably  incurred  expenditure,  may,  however,  have  a 
claim  to  compensation  under  §  812  of  the  Civil  Law  against  those 
whose  property  has  been  preserved  thereby. 

If,  after  the  loss  of  the  vessel,  cargo  is  saved  and  freight  becomes 
due  to  the  shipowner  (§  630),  the  salvag-e  is  not  apportionablc 
between  the  net  value  of  the  cargo  saved  and  the  freight  earned,  the 
salvage  being  a  prior  charge  on  the  cargo  and  the  claim  for  freight 
ranking  after  it(r). 


(r)  Judgment  of  R.  G.,  1903,  Martha  Fercival. 

L.  N  N 


546 


APPENDIX  J. 


Definition 
danger. 


Definition 
expense.-i. 


Definition 
sacrifice. 


According  to  German  law  it  is  not  a  condition  of  general  average 
that  tlio  common  safety  shall  have  been  attained  hv  the  sacrifice; 
it  is  sufficient  that  ship  and  carg-o  have  escaped  the  danger  which 
caused  the  sacrifice  to  be  made. 

of  Though  danger  is  a  necessary  condition  of  general  average,  it 
need  not  have  been  a  real  one.  The  condition  is  complied  with, 
when  the  circumstances  are  such  as  to  justify  a  master  of  reasonable 
judgment  in  assuming  that  the  vessel  and  cargo  are  in  a  perilous 
position  (s). 

of  Though  the  text  of  the  law  does  not  expressly  provide  that  ex- 
penses, in  order  to  be  allowable  as  general  average,  must  be  extra- 
ordinary, they  cannot  be  so  treated,  unless  they  have  been  incurred 
outside  the  contract  of  affreig-htment  and  for  the  purpose  of  preserv- 
ing ship  and  cargo  from  a  common  daT:iger.  It  entire h-  depends  upon 
the  circumstances  of  the  case,  whether  expenses,  thoug-h  ordinarily 
payable  by  the  shipowner  (§  621),  can  be  treated  as  g-eneral  average. 
For  example,  the  expense  of  cutting  a  ship  out  of  the  ice  is,  in  the 
Baltic,  an  ordinary  incident  of  navigation  (tj;  yet  if  by  reason  of 
an  accident  the  ship  is  unexpectedly  caught  in  the  ice,  whereby  she 
and  her  cargo  are  placed  in  a  position  of  danger,  the  cost  of  cutting 
her  out  may  properly  be  g-eneral  average ;  and  it  has  been  so  treated 
in  the  German  Courts.  So  the  towing-  of  a  ship  into  her  port  of 
destination  is  an  ordinary  operation;  yet  if  a  ship  is  in  danger — 
e.g.,  in  case  she  cannot  find  her  way,  through  the  removal  of  buoys 
in  time  of  war,  or  through  fog — and  is  rescued  from  that  danger  by 
a  tug  which  tows  her  to  her  destination,  the  cost  of  such  rescue  cer- 
tainly ought  to  be  general  average. 

of  Loss  or  damage  is  considered  to  have  been  incurred  voluntarily 
which,  though  not  absolutely  intended  by  the  master,  yet  was  con- 
sidered by  him  as  possibly  resulting  from  his  act  or  order. 


(s)  See  judgment  of  O.  L.  G.,  Hamburg,  1904,  <S.'S'.  Bjovginn,  where  it  was  held 
that  the  ma.ster  who  was  able  to  consult  the  pilot  as  to  the  position  of  his  vessel, 
but  omitted  to  do  so,  was  not  justified  in  assuming  that  the  vessel  and  cargo  were 
in  a  perilous  position,  and  was,  therefore,  not  entitled  to  claim  compensation  in 
general  average  for  damage  to  the  engines  by  floating  operations  which  were 
unnecessary,  the  steamer  being  likely  to  refloat  with  the  rising  tide. 

{t)  See  judgment  of  the  A.-G.,  Hambui'g,  1900,  S.S.  Hamburg.  The  master  of 
this  steamer,  having  for  about  twenty-four  hours  been  prevented  by  ice  from 
reaching  Reval,  and  an  ice-breaker  not  being  available,  finally  accepted  the 
assistance  of  some  pilots  in  order  to  bring  the  steamer  into  port.  The  shipowner's 
claim  to  recover  in  general  average  the  remuneration  of  these  pilots  was  rejected 
by  the  Court  on  the  strength  of  §  G21,  and  on  the  ground  that  a  shipowner  who 
sends  a  vessel  in  February  to  Reval  ought  to  foresee  this  occurrence,  and  to  take 
this  expenditure  into  account  when  fixing  the  rate  of  freight. 


I 


THE  LAW  OF  GERMANY.  ^^^ 

Consequential  losses  caused  by  a  general  average  act  comprise  Of  conse- 
such  damage  and  expenses  as  are  the  natural  and  immediate  con-  !|'g^°^ffij^_ 
sequence  of  the  sacrifice  and  may  have  been  foreseen  by  a  master  of 
ordinary  foresight,  but  do  not  include  such  damage  and  expenses  as 
arise  from  subsequent  accidents,  though  the  latter  would  not  have 
occurred  but  for  the  sacrifice. 

The  words  "by  the  master  or  his  orders,"  in  §  700,  Avere  inserted 
in  order  to  supersede  the  antiquated  rule  that  there  must  first  be  a 
consultation  with  the  crew.  The  captain  now  has  to  act  alone,  and 
on  these  occasions  has  to  act  promptly;  and  it  was  thought  better 
to  leave  the  sole  responsibility  to  him.  In  his  absence,  however, 
the  mate,  or  w^hoever  is  in  charge  of  the  ship,  has  the  same  authority. 

Expenditure  not  incurred  by  the  master  or  by  his  orders,  but 
caused  by  the  act  of  third  parties,  e.g.,  by  the  interference  of  local 
authorities,  cannot  be  the  subject  of  general  averag^e,  except  in  cases 
Avithin  the  provisions  of  §§  635,  629.  Thus  it  has  been  held  by  the 
German  Courts  that  expenditure  caused  to  the  shipowner  by  the 
detention  of  his  .ship,  owing  to  her  discharge  having  been  stopped 
for  some  days  by  the  local  authorities  at  the  port  of  destination,  in 
order  to  prevent  a  fire  from  spreading  among  the  cotton  cargo  on 
Ijoard,  Avas  not  recoA^erable  in  general  average.  Even  Avithout  the 
interference  of  the  authorities,  neither  the  expenditure  connected 
Avith  the  detention  of  the  ship  under  these  circumstancee  nor  the 
consequent  damage  to  the  cargo  by  fire  would  have  been  alloAvable 
as  g-eneral  average,  both  haA'ing  been  due  to  necessity  and  not  having 
resulted  from  a  voluntary  decision  of  the  master. 

Salvag-e,  properly  so  called,  e.g.,  of  a  derelict  vessel  and  her 
cargo,  though,  strictly  speaking,  not  the  subject  of  general  average, 
is  apportioned  on  the  same  principles,  if  the  salvage  Avas  one  com- 
plex operation  and  the  amounts  payable  by  each  property  or  interest 
Ave  re  not  separately  fixed. 

NotAvithstanding  the  proAdsion  of  §   702,  the  shipowner  who,  by  -Default  of 

7  T  1  •      i  1  X       J.      1?      n-     •    1  J.      parties  to  the 

the  insertion  of  the  negligence  clause  in  the  contract  ot  arlreignt-  adventm-o. 

mcnt,  has  exempted  himself  from  respoasibility  for  loss  or  damage 

resulting  from  faults  or  errors  of  the  master  and  creAv  in  thenaAdga- 

tion  of  the  vessel,  is  neither  responsible  for  the  contributions  of  the 

other  parties  to  the  adventure   (cargo-OAvners)   to  general  average 

occasioned  by  such  negligence,  nor  loses  his  right  to  claim  from  them 

compensation  in  general  aA-erage  for  loss  or  damage  suffered  by  his 

OAvn  property  from  the  same  cause  (u) . 

When  the  g-eneral  average  act  has  been  caased  by  a  fault  of  the 

master,  for  Avhicli  the  shipowner  is  responsible,  e.g.,  by  improper 


[ii)  Judgment  of  R.  G.,  190.5,  S.S.  liossi/a. 
N  X  2 


548  APPENDIX  J. 

stowag-e  or  loading-,  the  latter  is  not  entitled  to  recover  in  general 
average;  the  loss  thereby  occasioned  to  his  property  (x),  and  will  be 
responsible  for  e^nj  contributions  payable  by  the  other  parties  to  the 
adventure . 

2.  Enumeration  of  the  Several  Gases  of  General  Average  Loss. 

(Chaps.  II.  to  V.) 

A  complete  enumeration  of  general  average  losses,  or  one  that 
professes  to  be  complete,  is  perhaps  hardly  desirable,  since  new 
cases,  resulting"  perhaps  from  changes  in  the  ways  of  navigation  and 
of  maritime  commerce,  are  constantly  arising,  for  which  a  completed 
list  mig-ht  not  leave  room.  Nor  does  the  German  Code  profess  to 
give  such  a  list,  but  only  a  few  typical  examples .  It  may  be  doubted 
whether  it  g'oes  far  enoug'h,  since,  for  practical  purposes,  the  fuller 
the  list  the  better,  besides  which  every  doubtful  case  which  has  been 
decided  is  likely  to  furnish  fresh  analogies,  useful  in  determining-^ 
new  cases  as  they  arise . 
Construction  The  enumeration  in  the  Code  is  contained  in  §§  706  and  707.  Witli 
0  t  e  to  e.  regard  to  these  articles  it  has  been  judicially  decided  that,  although 
the  list  is  not  to  be  taken  as  exhaustive,  yet,  in  each  of  the  seven 
cases  provided  for  in  §  706,  the  list  of  items  admissible  is  complete 
in  the  sense  that  an  item  not  tlierein  sj)ecified  is  to  be  taken  as  ex- 
cluded. Thus,  from  the  fact  that  in  No.  3  of  this  Article,  which  deals 
with  the  case  of  a  voluntary  stranding-,  the  wages  and  maintenance 
of  the  crew  are  not  mentioned  among-  tlie  items  of  g-ieneral  average, 
whereas  in  No.  4,  which  deals  with  putting-  into  a  port  of  refuge, 
this  item  is  so  mentioned,  we  are  justified  in  concluding-  that  the 
Code  intends  in  the  former  case  to  exclude  this  item,  notwithstand- 
ing the  natural  inference  to  the  contrary  which  might  be  drawn  by 
analogw.  Ag-ain,  since  in  No.  4  the  damag-e  done  to  the  cargo  in 
discharg-ing-  and  reloading-  it  is  not  enumerated,  it  must  be  taken  as 
excluded  by  the  Code  from  g-eneral  averag-e. 
Jettison.  As  regards  jettison,  we  learn  that  the  framers  of  the  Code,  with 

the  view  of  leaving-  the  captain  perfectly  free  to  act,  in  the  moment 
of  danger,  as  he  may  himself  think  best  for  the  common  safety,  pur- 
posely omitted  all  those  directions  which  are  to  be  found  in  other 
Codes,  as,  that  he  should  first  consult  ^^^.tll  his  crew,  that  he  should 
beg-in  with  ship's  materials  before  touching  the  cargo,  that  he  should 
select  the  heaviest  and  least  valuable  g-oods,  and  the  like;  requir- 
ing only,  of  course,  that  he  should  act  in  a  reasonable  manner. 
No  allowance  can  be  made  for  g-oods  which  at  the  time  of  tlie 


{x)  Judgment  of  0.  L.  G.,  Hamburg,  1897,  S.S.  K)i\ght  of  St.  John. 


THE  LAW  OF  GERMANY. 


549 


jettisou  had  already  become  valueless  from  some  accidental  cause, 
nor  for  g-oods  wliicli  were  jettisoned  owing-  to  their  endangering-  the 
safety  of  the  ship  and  the  remainder  of  the  cargo,  if  their  dang-erous 
nature,  though  known  to  the  shipper,  had  not  been  disclosed  by  him 
to  the  master. 

In  a  case  tried  in  the  Courts,  Avliere  a  ship  laden  with  guano  had 
sprung-  a  leak,  owing-  to  Avhich  a  quantity  of  the  guano  had  become 
so  saturated  with  water  as  to  be  reduced  to  a  pulpy  mass,  which  by 
rolling  from  side  to  side  rendered  the  ship  innavigable,  so  that  some 
of  it  had  to  be  thrown  overboard,  and  afterwards  the  ship  was  taken 
for  repairs  into  Valparaiso,  where  the  remainder  of  this  damag'ed 
mass,  being  unfit  to  be  carried  on  and  of  no  value  on  the  spot,  w£is 
thrown  overboard  in  port,  it  was  decided  that  the  loss  of  the  portion 
thus  thrown  overboard  was  not  admissible  in  general  averag-e.  The 
allowance  of  the  portion  jettisoned  at  sea  was  not  disputed.  AVhen 
ship's  materials  are  thrown  overboard  from  the  deck,  they  are  only 
allowed  in  general  average  in  case  they  are  properly  and  customarily 
carried  there,  such  as  the  boats,  spare  spars,  and  the  like;  not  such 
as  are  improperly  put  there  for  the  occasion,  as  spare  hawsers,  pro- 
visions, or  water,  in  order  to  enable  the  ship  to  take  more  carg-o 
below.  There  seems  to  be  some  difference  of  opinion  concerning 
water-casks.  Probably  the  true  rvile  is  the  one  now  g^enerallj^  fol- 
lowed in  practice  in  this  country,  viz.,  that  a  cask  or  two,  enough  for 
the  present  consumption  of  the  crew,  may  be  carried  on  deck,  as 
well  as  a  harness  cask  or  two  of  meat;  but  that  the  bulk  of  the  water 
and  provisions  should  be  kept  below. 

Damage  done  to  a  ship  in  the  act  of  jettisoning-  deck  cargo  is  to 
be  made  good  in  general  average,  though  the  jettison  of  the  deck 
cargo  is  not  so  treated  {y). 

When  a  deckload  has  been  jettisoned  (the  jettison  not  being 
admissible  as  general  average)  and  has  afterwards  been  salved,  the 
shipowner  being  entitled  to  freight  thereon,  the  salvage  is  not  appor- 
tionable  between  the  net  value  of  the  deckload  and  the  freight 
earned,  but  is  payable  by  the  deckload  alone,  the  claim  for  freight 
ranking  after  it  (^;) . 

When  a  mast  has  been  carried  away,  the  cutting  awa}^  of  the  Cutting  away 
ropes  or  other  remains  attaching-  it  to  the  ship  is  not  under  ordinary 
■circumstances  treated  as  general  average ;  but  where  the  wreck  of 
a  mast  so  carried  away  has  become  dangerous  to  tlio  ship,  and  for 
that  reason  has  to  be  cleared  away  and  got  rid  of,  it  nia^-,  under 
some  circumstances,  be  right  to  allow  the  value  of  what  is  thus  cut 


(y)  Judgment  of  O.  L.  G.,  Hamburg,  1900,  .S.  S.  Slcodshonj. 
[z)  Judgment  of  O.  L.  G.,  Hamburg,  1905,  S.S.  Raparanda. 


of  wreck. 


550 


APPENDIX  J. 


awav  in  g-eneral  avcrao-e 


Damag-e 
iiicidentfil 
to  sacrifice. 


Voluntary 
strandinsj. 


Damage  done 
to  get  si  lip 
off  shore. 


Port  of  refuge 
expenses. 


In  practice  it  is  u.sual,  when  the  wreck 
might  have  been  saved  but  for  the  common  clanger,  but  is  cut  away 
for  the  common  safety,  to  allow  in  general  average  a  sum  Avhich, 
according  to  the  estimate  of  nautical  experts,  fairly  represents  its 
value  as  wreck.  No  allowance  is  made,  however,  if  it  was  in  any  case 
impossible  to  save  it. 

Of  damage  incidental  to  a  sacrifice,  the  following  examples  may 
be  cited  as  admissible  in  general  averag-'o:  Damage  clone  to  the  deck 
or  boats  by  the  falling  of  a  mast  cut  away;  damage  b}'  chafing  of 
the  cargo  which  breaks  loose  in  consequence  of  the  removal  of  a 
portion  for  jettison;  and  damag-e  done  to  the  cargo  by  water  which 
gets  below  while  the  hatches  are  open  in  making-  a  jettison. 

It  is  to  be  noted  that  the  German  law  does  not  allow  as  .general 
averag-e  damage  caused  by  a  voluntary  stranding  unless  the  founder- 
ing or  the  capture  of  the  vessel  and  her  cargo  has  thereb}-  been 
avoided,  and  unless  the  vessel  is  subsequently  got  off  and  found 
capable  of  repair. 

In  cases  of  accidental  stranding,  tlie  practice  is  as  follows: — When 
sails  are  set,  or  are  kept  set,  in  order  to  force  the  ship  ofE  the  ground, 
and  are  blown  away  or  injured  in  consequence,  this  damage  is  treated 
as  general  average.  When  a  steamer  is  on  shore,  and  in  order  tO' 
back  her  off  or  force  her  over  the  bank  into  deep  water,  the  eng-ines 
are  kept  working,  and  thereby  the  machinery  is  strained  or  injured, 
or  the  propeller  broken,  e.g.,  by  reason  of  its  w^orking  in  shallow 
water  or  among  rocks,  such  damage,  and  likewise  the  cost  of  the 
coal  consumed  during  such  working,  are  treated  as  general  average. 

As  to  port  of  refuge  expenses,  a  putting  into  port  merely  on 
aocoimt  of  contrary  Avinds,  or  to  avoid  delay  throug-h  ice,  and  in 
general  where  there  is  no  imminent  danger  threatening  ship  and 
cargo  in  case  she  remains  at  sea,  is  not  to  be  treated  as  general 
average.  In  determining  what  is  such  danger  as  justifies  putting 
in,  account  is  to  be  taken  of  the  character  of  the  ship  and  voyage. 
Ice,  such  as  would  be  no  obstacle  to  a  North  Sea  whaler,  mig-lit  be 
dang-erous  enough  to  an  ordinary  vessel. 

Except  in  the  case  provided  for  in  §§  635,  733,  the  expenses  con- 
sequent on  a  detention  are  not  the  subject  of  gieneral  average  when 
the  vessel  has  been  detained  at  the  port  of  loading  or  call,  unless  the 
repairs  to  be  effected  there  have  been  necessitated  by  a  general 
average  sacrifice  or  the  vessel  has  returned  thither  in  distress. 

Where  a  ship,  bound  for  Stettin,  was  carried  by  the  master  into 
Helsingor,  in  order  to  avoid  risk  of  capture,  on  his  hearing  that  Avar 
had  broken  out  betAA-een  France  and  G-ermany,  and  that  Stettin  Avas 
blockaded  by  the  enemy,  and  was  detained  at  Helsingor  about  tAvO' 
months,  the  expense  of  putting  in  and  of  the  detention  Avas  treated 


THE  LAW  OF  GERMAN  V. 


501 


b}'  the  Courts  as  general  average ;  and  it  was  held  to  bo  .sufficient 
that  the  blockade  had  been  notified,  whether  by  the  law  of  nations  it 
were  a  regular  blockade  or  not.  So,  where  a  declaration  of  v.-ar  took 
place  shortly  before  the  completion  of  a  ship's  loading  at  Antwerp, 
and  the  master,  after  completing  his  loading,  remained  for  some 
three  months  in  port,  fearing  capture  if  he  sailed,  it  was  held  by  a 
court  in  Hamburg  that,  under  §  635  of  the  Code,  the  expense  of  this 
detention  must  be  treated  as  if  it  were  general  average,  whether 
the  cargo  were  free  or  liable  to  condemnation  aft-er  capture  with 
the  ship. 

The  wages  and  maintenance  of  the  crew,  during  the  time  occu- 
pied at  sea  in  bearing  up  for  a  port  of  refuge,  are  not,  like  the  wages 
and  kee])  in  port,  allowed  in  general  average;  neither  are  the  engine- 
room-stores  consumed  in  bearing  away  for  the  port  of  refug-e,  and 
vice  versa,  allowable.  This  follows  from  the  rule  laid  down  by  the 
Courts,  that  an  item  not  specified  in  each  of  the  cases  enumerated  by 
§  706  is  to  be  taken  as  excluded  from  general  average. 

If,  after  the  cargo  has  been  reshipped  and  the  ship  is  ready  for 
sea,  she  is  detained  in  the  port  of  refuge  in  consequence  of  storm  or 
ice,  the  wag'es  and  keep  of  the  crew  during  this  supplementary  deten- 
tion are  not  allowable  as  general  average. 

It  has  been  decided  in  the  Courts  that,  when  a  ship  lias  put  into 
a  port  of  refuge  for  repair  of  accidental  damage,  the  cost  of  employ- 
ing divers  to  discover  the  extent  of  damage,  so  as  to  determine 
wliether  it  is  necessar}^  to  discharge  cargo,  belongs  to  general 
average  (aj . 

If  the  master  at  a  i)ort  of  refuge,  instead  of  taking  steps  with 
regard  to  tlie  execution  of  repairs  on  his  own  authority,  deems  it 
necessary  to  wait  for  the  arrival  of  the  owner's  special  representa- 
tive, the  delay  thus  occasioned  is  not  to  be  counted  as  ])art  of  that, 
detention  during  Avhich  the  wages  and  maintenance  of  the  crew 
are  allowable  as  general  average  (5). 

The  costs  incurred  on  behalf  of  the  ship  or  the  cargo,  whilst  the  Expenditure 
ship  is  in  a  port  of  refuge,  are  admissible  as  general  average  only  "^  po^"*  ^^ 

£        ,1  .     ,     ,       .  1-1,1  ...  .  1-111,        1        refus-e  not 

for  tlie  period  during  Avliich  the  original  motive,  Avhicii  led  to  the  occasioned  bv 

putting   in,    remains    operative.      As    soon    a-;    tliis    original    cause  the  niotiye  for 
.  J        ,1  11  1  ,     •  1        '     T  ,  piittiug  in. 

ceases  to  operate,  the  allowance  ceases  also,  notwithstaadiiig  that 
some  other  cau.se  may  delay  the  ship's  putting  (o  sea  again.  If, 
therefore,  a  ship,  which  has  run  iu  for  repairs,  has  boon  repaired, 
but  meanwhile  has  been  frozen  in  aud  obliged  to  winter  at  the  ])ort 
of  refuge,  it  has  been  decided,   that   the   wages  and    maintenance 


{a)  Judgment  of  H.  G.,  Hamburg,  IhSI,  I'r'uicc  Eugene. 
(/>)  Judgment  of  H.  O.  L.  G.,  Hamburg,  1881. 


552 


APPENDIX  J. 


Damage 
to  cargo. 


Fire — insur- 
ance of  cargo. 


Temporary 
repairs. 


subsequently  to  the  completion  of  the  repairs  are  not  admissible  as 
general  average.  So,  if  a  ship  is  condemned  as  not  worth  repairing 
in  the  port  of  refuge,  and  the  cargo,  which  has  been  landed,  is  for- 
warded in  another  ship,  wliile  the  cost  of  discharging  and  storing 
the  cargo  are  allowable  as  general  average,  the  wages  and  mainten- 
ance of  the  crew  and  the  storage  charges  incurred  after  the  con- 
demnation of  the  vessel  or  the  abandonment  of  the  voyage  are  not 
so  treated,  this  being  the  moment  when  the  community  of  interest 
between  ship  and  cargo  ceases. 

Damage  to  cargo  resulting  from  discharging  or  storing  it  at  the 
port  of  refuge  is  not  enumerated  in  the  Code  among  the  items  admis- 
sible as  general  average.  The  Courts  have  given  two  contradictory, 
decisions  under  this  head:— The  ship  Celestine,  carrying  rock  salt 
from  Torrevieja  to  Memel,  sprang  a  leak  in  a  storm,  and  put  for 
repair  into  Cadiz,  where  the  cargo  was  discharged  and  placed  on  the 
ground,  where  it  remained  during  the  repairs  for  about  seven  weeks. 
On  arrival  at  Memel,  its  port  of  destination,  the  rock  salt  was  found 
to  bo  in  an  unmerchantable  condition,  being  dusty,  mud-stained, 
and  broken;  a  great  part  of  which  loss  resulted  from  the  exposure 
after  landing.  The  question  arose  whether  this  loss  was  allowable 
as  general  average;  and  the  Court  decided  that  it  was  not.  The 
reason  given  Avas,  that  intentional  damage  either  to  ship  or  cargo 
is  a  nece-ssary  condition  of  general  average;  but  here,  where  a  ship- 
master, on  account  of  particular  average  damage,  enters  a  port  of 
refuge  for  repair,  and  for  this  purpose  lands  and  stores  the  cargo, 
he  does  not  intend  the  sacrifice  or  damag\3  of  the  cargo,  but,  on  the 
contrary,  its  preservation.  On  the  other  hand,  it  appears  from  the 
decision  of  the  Court  in  Hamburg,  that  a  loss  of  quantity  in  the 
cargo,  e.g.,  guano,  resulting  from  its  discharge  and  reloading  at  a 
port  of  refuge,  is  properly  admissible  in  general  average.  A  distinc- 
tion between  loss  in  quality  and  loss  of  quantity  is  plainly  untenable, 
and  in  practice,  damage  necessarih^  caused  by  discharging  and  re- 
loading cargo  or  loss  in  handling  cargo  in  bulk,  e.g.,  the  damage  or 
loss  caused  by  breakage  of  coals  or  by  spilling  grain,  is  treated  as 
general  average. 

There  is  no  settled  practice  with  regard  to  the  allowance  of  the 
premium  of  fire  insurance  on  cargo,  landed  and  stored  in  the  port  of 
refuge,  some  adjusters  allowing  it  as  a  general  average  charge, 
some  treating  it  as  a  special  charge  on  cargo. 

The  cost  of  repairing  particular  averag-e  damage  at  a  port  of 
re£uge  is  borne  by  the  ship  alone,  even  though  it  may  greatly  exceed 
the  cost  of  such  repairs  at  the  port  of  destination.  In  cases,  however, 
where  mere  temporary  repairs  are  made,  so  as  to  avoid  the  necessity 
for  discharging  the  cargo  to  make   complete  repairs,   it  was  the 


THE  LAW  OF  GERMANY. 

practice  in  most  of   the   Gerniau   ports   to   bring-  these  teiu^^orary 
repairs,  so  far  as  they  were  of  no  permanent  value  to  the  ship,  into 
general  average.     This  practice,  however,  was  set  aside  by  the  fol- 
lowing decision  of  the  Hanseatic  Supreme  Court: — The  ship  Prince 
Eugene,  owing  to  a  great  wave  follo\ving  upon  an  earthquake,  was 
driven  ashore  on  the  south  coast  of   Peru,  near   Pabillon   de    Eica. 
At  tliis  place  she  could  not  be  repaired,  and  she  was  therefore  taken 
for  that  purpose  to   Callao.      Here   her  bottom   was  examined  by 
divers,  and  it  was  resolved,  instead  of  repairing  her  completely  at 
Callao,  Avhich  would  have  necessitated  the  discharge  of  the  carg-o 
and  a  larg-e  consequent  general  average  expense,  merely  to  make, 
by  means  of  divers,  certain  temporary  repairs,  such  as  the  patching 
of  her  copper  and  the  repairing  of  her  damaged  rudder.    AVith  these 
repairs  she  sailed  on  her  voyag-e,  and  arrived  safely  at  her  destina- 
tion.    The  temporary  repairs  were  of  no  permanent  value  to  the 
ship,  all  the  new  material  having  to  be  stripped  off  when  she  came 
to  be  finallj^  repaired  after  arrival.     The  shipowner  contended  that 
the  temporary  repairs  at  Callao  were  allowable  as  general  average, 
on  the  ground  that  they  were  an  expense  incurred  to  prevent  a 
greater  general  average  expenditure.     The  Court,  however,  decided 
against  the  claim.     This  argument,  it  was  said,  was  not  founded 
on  the  proper  point  of  view.     The  master  of  a  ship,  when  he  has  to 
choose  between  two  coiu-ses,  with  the  view  of  restoring:  his  damas-ed 
ship  to  a  proper  condition  for  completing  her  voyage,  is  bound  to 
adopt  that  one  which  he,  as  a  reasonable  man,  after  taking-  advice, 
deliberately    considers    to    be,  under    the    circumstances,    the    best 
adapted  for  that  piu'pose.    If,  therefore,  in  the  case  under  considera- 
tion, the  damag-e  to  the  hull  of  the  ship  was  so  inconsiderable  tliat 
the  ship  could  safely  proceed  to  sea  after  merely  patching  up  the 
hull  by  means  of  divers,  the  master  would  be  acting  contrary  to  his 
duty,  were  he  to  go  to  the  expense  of  discharging  the  cargo  to  effect 
complete  repairs  at  Callao.    It  could  not,  in  such  a  case,  be  said  that 
the  discharge  of  the  cargo  was  a  necessary  consequence  of  the  cause 
(Grund)  Avhich  justified  putting  into  Callao,  and,  therefore,  if  the 
cargo  had  been  discharged,  the  cost  of  doing  so  would  not  properly 
have  been  general  average.     These  temporary  repairs,  then,  must 
be  treated  as  particular  average  on  the  ship  (c).     Tliis  judgment  is, 
however,  not  uniformly  acted  upon  in  practice,  some  adjusters  ad- 
mitting as  general  average  the  cost  of  temporary  repairs  in  a  port  of 


553 


(c)  Judgment  of  0.  L.  G.,  Hamburg,  1881,  Prince  Eugene.  It  is  interesting  to 
note  that  this  judgment,  and  the  reasoning  it  is  based  on,  exactly  correspond  with 
the  judgment  of  Blackburn,  J.,  in  IVihon  v.  Bank  of  Victoria,  L.  R.  2  Q.  B.  203  ;  36 
L.  J.  Q.  B.  89. 


554  APPENDIX   J. 

refug-e  necessary  for  the  safe  prosecution  of  the  voyage  vip  to  the 
amount  of  the  expenditure  (e.g.,  cost  of  discharging,  storing,  re- 
loading cargo,  wages  and  maintenance  of  crew)  saved  thereby,  which 
w^ould  have  been  the  subject  of  general  average,  if  the  repairs  had 
been  done  permanently. 
Defence  With  regard  to  the  damage  clone  to  the  ship,  and  compensation  to 

agamst enemy  ^j^^  ^^^^^  ^^^  iniuries  sustained,  and  meritorious  service  rendered,  in 
or  pirare.  •'  .  •  ,  i       ^ ,  i      • 

defending  the  ship  against  an  enemy  or  pirate,  the  (jrerman  rule  is 

more  reasonable  than  that  which  prevails  in  England  and  the  United 
States.  There  it  was  laid  down  long  ago  by  the  Courts,  as  we  have 
seen,  that  the  master  and  crew  who  resist  and  beat  off  a  hostile  attack 
have  done  no  more  than  their  duty,  and  therefore  deserve  no  reward. 
Still,  it  may  be  politic  to  encourage  such  exertions  by  a  liberal 
recoanition  of  them.  The  master  does  no  more  than  his  duty  in 
cutting  away  his  mast,  Avhen  the  ship  has,  by  an  accident,  been  placed 
in  a  situation  where  nothing  el.se  can  prevent  a  total  loss;  still,  we 
make  compensation  for  this.  If,  in  the  case  of  an  armed  cruiser, 
or  even  of  a  ship  carrying  letters  of  marque,  fighting  an  enemy  might 
in  time  of  war  be  regarded  as  an  ordinary  incident  of  navigation — 
though  even  then  it  is  not  more  so  than  a  gale  of  mnd — yet  the 
seaman  on  board  an  unarmed  merchantman  might  well  plead  that 
he  was  hired  to  navigate  the  ship,  not  to  fight,  and  that  if  injured 
in  performing  the  latter  service  he  deserved  some  compensation. 
Special  agents  The  cost  to  the  Owner  o'f  sending  out  a  special  agent  to  assist, 
sent  out.  direct,  or  overrule  the  master  in  any  special  emergency  is  usually 

not  allowed  in  general  average,  imless  the  necessity  of  this  measure, 
for  the  common  benefit  of  ship  and  cargo,  has  been  justified  by  very 
strong  reasons.     The  master,  it  is  generally  held,  ought  to  be  com- 
petent to  exercise  his  proper  authority  without  such  assistance. 
Damage  in  Damage  done  to  ship  or  cargo  in  extinguishing  a  fire,  though  not 

exti^o^ish-  mentioned  in  the  Code,  is  the  subject  of  g-eneral  average,  even  with 
regard  to  such  packages  as  were  already  on  fire,  the  compensation 
in  general  average  being,  however,  restricted  to  the  damage  done 
by  water  alone,  or  to  such  value  as  the  burning  packages  still  have 
when  the  fire  has  been  extinguished.  In  the  case  of  The  Alida 
Margaretha,  where  a  fire  on  board  a  ship  laden  with  bags  of  guano 
was  extinguished  by  pouring  down  water,  the  damage  by  water  to 
the  bags,  that  had  already  caught  fire,  Avas  recognized  as  one  of 
the  items  admissible  as  general  average;  and  this,  notwithstanding 
that  the  fire  broke  out  in  the  cargo  itself,  apparently  from  spon- 
taneous combustion.  In  another  case  decided  by  the  Courts,  the 
damage  done  by  Avater  to  cotton  on  fire,  Avhich  had  been  extinguished 
partly  in  the  ship's  hold  and  partly  by  throwing  the  bales  overboard, 
Avas  alloAA'ed  in  general  aA-erage. 


ing  fire. 


THE  LAW  OF  GERMANY.  ^00 

The  expenses  of  raisiiig-  the  money  required  during  the  voyage  to  Expense  of 
cover  general  average  disbursements  inchide  a  commission  to  the  ^ 

shipowner  uho  advances  such  funds  and  the  premium  of  insuring 
such  disbursements,  whether  the  shipowner  has  taken  out  a  policy 
or  whethei  he  has  ru2i  the  risk  on  his  own  account  (<^ ) . 

As  to  the  allowance  of  interest  on  general  average  disbursements 
during  the  voyage  and  on  the  compensation  for  property  sacrificed, 
there  is  no  uniform  practice  among  the  adjusters. 

The  exclusion  of  the  costs  of  reclamation — that  is  to  say,  of  Cost  of  legal 
resisting  condemnation  after  capture  and  so  obtaining  restoration  Proceedings, 
of  the  ship  and  cargo  to  their  o\vner.s — is  explained  by  the  considera- 
tion that  these  expenses  are  not  incurred  in  the  interest  of  the  parties 
jointh',  but  for  each  severally;  the  cargo  may  be  successfully  re- 
claimed as  neutral  property  though  the  ship  be  condemned  as  prize ; 
and  even  il'  the  suit  be  carried  on  jointly,  aiid  may  be  successful  as 
to  both,  yet  the  proportion  of  the  expenses  properly  falling  on 
each  may  not  be  in  the  ratio  of  their  respective  values,  since  there 
may  be  great  laboiu'  and  expense  incurred  in  reclaiming  a  ship  of 
little  worth,  Avhile  a  very  valuable  cargo  may  be  reclaimed  at  much 
less  actual  cost.  The  same  principle  evidently  applies  to  the  cost  of 
a  joint  salvage  suit. 

Concerning  press  of  sail — that  is,  the  damage  done  to  a  ship  or  CaiTying 
her  tackle  by  carrying  a  greater  press  of  canvas,  in  order  to  bear  off  1""®®^  °*  ^*^^- 
a  leeshore  in  a  gale  of  wind  or  to  escape  the  pursuit  of  an  enemy, 
than  it  would  be  safe  or  proper  for  the  ship  to  carry  under  ordinary 
circumstances — at  the  coirferenees  which  preceded  the  drafting  of 
the  Code,  it  ^vas  propo.sed  on  behalf  of  Prussia  that  such  damage, 
Avhether  to  the  ship  or  to  the  cargo,  by  the  consequent  leakag^e, 
should  be  treated  as  general  average.  This,  however,  was  rejected 
after  discussion,  on  the  ground  that  it  was  no  more  than  the 
ordinary  duty  of  the  shipowner  under  his  contract  of  affreig-htment 
to  use  all  the  ordinary  appliances  of  the  ship  towards  the  safe  prose- 
cution of  the  voyage,  whether  it  be  by  putting  a  greater  or  less 
strain  upon  them.  This  arg-ument  was  reinforced  by  the  somewhat 
obvious  consideration  of  the  practical  abuses  towards  which  a  con- 
trary rule  must  tend,  since  it  would  bo  easy  for  a  shipmaster  who 
had  lost  his  sails  or  sprung  a  leak  in  bad  weather  to  make  out  a 
plausible  ground  for  alleging  that  on  account  of  some  danger  he 
had  been  obliged  to  carry  a  press  of  sail  at  some  time  or  other. 

Jettison  of  deck-cargo  gives  no  claim  to  contribution,  even  as  Deck-load 
between  the  shipowner  and  a  shipper  who  has  consented  to  that  Jettison, 
mode  of  stowage.    The  German  law  also  goes  beyond  the  Eno-Hsh 


{d)  Judgment  of  R.  G.,  1884. 


556 


APPENDIX  J. 


in  not  allowing-  contribution  in  trades,  «uoli  as  the  timber  trade 
between  Great  Britain  and  her  colonies,  in  which  the  carrying  of  a 
deckload  is  sanctioned  by  custom,  excepting  only  the  coasting  trade, 
so  far  as  therein  the  carrying  of  deckloads  is  permitted  by  any  of 
the  German  States — an  exception  which  is  nugatory,  since  none 
of  those  States  permits  it.  Cargo  in  the  poop  or  deckhouses  is 
treated  as  if  under  deck,  provided  the  poop  or  such  houses  are  built 
in  with,  so  as  to  form  part  of,  the  hull  of  the  ship;  otherwise,  as 
in  the  case  of  mere  temporary  erections  on  deck,  the  carg-o  is  treated 
as  if  on  deck. 


Estimates  of 
repairs. 


DeductioTis 


Dates  tor 
fixing  contri- 
butory value.' 


3.  Mode  of  Adjustment.    (Chaps.  VIII.  to  X.) 

Tlie  directions  of  the  Code  with  regard  to  the  mode  of  adjust- 
ment are  so  full  and  explicit,  that  every  ordinary  case  seems  to  be 
provided  for. 

One  peculiarity  which  distinguishes  this  Code  from  most  others, 
is  that,  instead  of  taking  as  the  basis  of  comi^ensation  the  actual 
cost  of  the  repairs,  it  takes  an  estimate  made  by  surveyors.  The 
motive  avowedly  is,  to  guard  against  the  frauds,  overcharges,  and 
falsified  accounts,  which  are  sometimes  detected,  and  much  oftener 
suspected,  in  connection  with  such  claims.  It  may  be  doubted, 
however,  whether  the  remedy  is  not  worse  than  the  disease:  an 
estimate,  after  all,  is  but  an  imaginary  quantity;  and  in  some  cases, 
e.g.,  in  the  repair  of  the  framework  or  machinery  of  an  iron  ship 
or  steamer,  the  best  estimate  in  the  world  is  a  very  uncertain  test  of 
the  actual  cost  of  the  work  to  be  done.  Strictly  speaking,  an  esti- 
mate is  a  prophecy,  and  the  safest  prophecies  are  those  made  after 
the  event,  as  these  estimates  occasionally  are. 

The  German  rules  for  adjustment  are  substantially  the  same  as 
the  English.     Some  peculiarities  may,  however,  be  mentioned:  — 

The  provisions  of  §  710  Avith  regard  to  deductions  from  the  cost 
of  repairs  are  antiquated,  and  have  largely  contributed  to  make  the 
introduction  of  the  York-Antwerp  Rules  agreeable  to  shipowners. 
In  determining  the  values  on  which  tlie  cargo  is  liable  to  con- 
tribute, or  on  which  damage  to  or  loss  of  cargo  is  to  be  made  good,  the 
law  fixes,  in  §§  711,  712,  718,  719,  the  point  of  time  throughout  at 
the  first  day  of  the  discharge,  even  if  the  adventure  ends  short  of 
the  destination.  The  same  provision  applies  to  the  assessment  of 
the  contributory  value  of  the  ship  (§  717).  This  principle  is  car- 
ried so  far  that  in  the  event  of  the  voyage  being  broken  up  at  an 
intermediate  port,  and  an  article  liable  to  contribute  getting  lost 
or  diminishing  in  value  in  the  interval  between  the  commencement 
of  the  discharge  and  the  abandonment  of  the  voyage,  the  general 
average  is  apportioned  over  the  values  which  were  existing  at  the 


THE  LAW  OF  GERMANY.  '^'^^ 

commencement  of  the  diseliarge,  "the  party  claiming-  compensation 
losing-  the  irrecoverable  contribution  (§  724,  sect.  2). 

Goods  which,  in  order  to  lig-hten  tlie  ship,  have  under  circum-  Contribiition 
stances  constituting'  a  general  average  been  temporarily  discharged  ^^  °oo  f'- 
into  lighters  (§  70G),  contribute  even  to  a  subsequent  general  aver- 
age loss  of  the  ship. 

Goods,  however,  Avhich  have  been  discharged  and  stored  in  a 
port  of  refuge,  do  not  contribute  to  a  subsequent  general  average 
loss  occurring  to  tlie  ship  and  to  the  remainder  of  cargo  still  on 
board  while  in  the  port  of  refuge. 

Valuables  (specie,  ingots,  metal  or  paper  money,  or  other  articles 
having  an  intrinsic  value)  shipped  under  a  mail  contract  have  been 
held  liable  to  g-eneral  average  contribution,  though  the  Court  ad- 
mitted that  the  enforcement  of  the  liability  will  in  most  cases  be 
impracticable,  and  recommended  an  alteration  of   the  law(e). 

When  the  circumstances  do  not  render  the  valuation  of  a  vessel  Dry-dock 
for  general  average  contribution  impracticable  Avithout  a  survey  of 
the  vessel  in  dry-dock,  the  shipowner  is  not  entitled  to  claim  the 
dry-dock  expenses  in  general  average,  on  the  plea  that  these  ex- 
penses were  necessarily  incurred  for  sighting  the  bottom  in 
connection  Avith  the  valuation  of  the  vessel  (/) . 

The  freight,  Avhether  at  the  risk  of  the  shipowner  or  whether  Freight. 
wholly  or  partly  advanced  and  at  the  risk  of  the  charterer,  contri- 
butes on  two-thirds  of  the  gross  amount  earned  or  made  good  in 
g-eneral  average. 

Freight  prepaid  and  earned,  vessel  and/or  goods  lost  or  not  lost, 
is  no  long-er  a  separate  interest  in  freight  within  the  meaning  of 
§  721,  but  is  involved  in  the  value  of  the  goods.  Such  freight  is, 
therefore,  not  subject  to  deduction. 

If  the  contract  of  affreightment  is  governed  by  German  law,  there 
can  be  no  loss  of  freight  in  general  average,  except  when  goods  are 
sacrificed  (or  sold  to  defray  a  general  average  expenditure).  No 
freight  is  lost,  the  sliipowner  being  entitled  to  distance-freight,  if 
the  voyage  is  broken  up  short  of  the  destination  (§  G30),  even  when 
the  abandonment  of  the  voyage  has  been  caused  by  a  general  average 
act.  No  freight  is  lost,  the  shipowner  being  entitled  to  full  freight, 
when  goods  are  sold  on  account  of  damage  at  an  intermediate  port 
and  the  vessel  completes  her  voyag-e  with  the  remainder  of  the 
cargo. 

The  proper  place  for  adjusting  the  general  average  is  the  port  riuce  and 
of  destination,  if  the  ship  and  cargo  reach  it,  otherwise  the  place  at  ^"jagtment. 


(<?)  Judgment  of  0.  L.  G.,  Hamburg,  1911,  S.S.  Goeben. 
(/)  Judgment  of  0.  L.  G.,  Hamburg,  1900,  S.^S.  Louise. 


558 


APPENDIX  J. 


Liability  of 
consignee. 


Security  for 
claims. 


Inland 
navigation. 


Avhich  they  part  company.  The  adjustmeuts  (Dispachen)  are  drawn 
up  by  qualified  persons  (Dispacheiire),  who  are  appointed  either 
by  the  local  Chambers  of  Commerce  (as  in  Prussia )  or  by  the  Govern- 
ment (as  in  Hamburg-,  Bremen,  and  Liibeek).  In  Hamburg-  adjust- 
ments arc  made  up,  not  only  by  the  official  Dispache-Comptoir, 
but  also  by  private  individuals.  The  rules  of  procedure  for  g-iving- 
validity  to  an  adjustment  which  Avere  in  force  under  the  old  law, 
especially  in  Prussia,  have  been  abolished,  a  confirmation  or  homo- 
logation by  the  Court  no  longer  being  required.  Certain  powers  of 
adjudication  on  the  duty  of  an  adjuster  to  prepare  an  adjustment  or 
on  disputes  arising-  out  of  adjustments  have  been  conferred  on  the 
Amtsgerichte ;  application  to  these  courts  being,  however,  notobli- 
g-atory,  and  ordinary  proceedings  at  law  being  generally  preferred 
for  the  settlement  of  disputes.  These  rules  are  not  reproduced 
here(g). 

A  consignee  is  not  personally  liable  for  the  contributions  attach- 
ing to  the  goods  delivered  to  him,  unless,  at  the  time  of  the  delivery, 
he  was  cognisant  or  had  been  notified  of  a  general  average  claim 
being  in  abeyance. 

Whoever  is  entitled  to  compensation  in  g-eneral  average  has  a 
lien  on  the  contributing  property,  w^hich,  with  regard  to  the  contri- 
butions due  from  the  cargo,  is  exercised  by  the  master,  wdio,  there-- 
fore,  in  order  to  avoid  personal  liability,  must  not  part  Avith  the 
cargo  before  proper  security  for  its  share  of  the  g-eueral  average 
has  been  obtained.  When  the  shipowner  has  only  to  consult  his  own 
interest,  or  the  amount  at  stake  is  inconsiderable,  he,  instead  of 
collecting  deposits,  is  usually  content  to  take  an  average-bond,  signed 
by  the  consig-nees.  On  the  other  hand,  consignees  having  general 
average  claims  are  entitled  to  security  from  the  ship  before  she 
leaves  the  place  wdiere  the  adjustment  is  to  take  place. 

The  master  of  the  ship  is  bound  to  have  the  adjustment  of  general 
average  made  up  without  delay,  and,  in  connection  Avith  this  duty, 
attention  is  called  to  the  statutory  rules  of  limitation.  (See 
page  545.) 

The  provisions  of  the  maritime  laAv  do  not  apply  to  vessels  em- 
ployed in  the  navigation  on  the  German  inland  waterways,  an  Act 
having  been  in  force  since  1895  Avhicli  contains  special  regulations 
as  to  the  carriage  of  goods  on  such  vessels,  also  with  regard  to 
general  average  (h). 


{g)  See  Reichsgesetz  liber  die  Angelegenheiten  der  freiwilligen  Gerichtsbarkeifc 
vom  17  Mai,  1898,  §§  149—158. 

(/«)  See  Gesetz  betr :  die  privatrechtlichen  Verhaltnisse  der  Binnenschifff ahrt  und 
der  riiJsserei  vom  15  Juni,  1895. 


!■ 


THE  LAW  OF  GERMANY.  559 

Apart  from  leg-ai  decisions  on  tlie  applieatiou  of  Eule  VII.,  the   Y.-A.  Rules, 
cases  in  wliich  German  Courts  of  Law  had  to  adjudicate  upon  the 
interpretation  of   York- Antwerp   Rules  are  not   numerous.      Some 
decisions  may  be  cited  here:  — 

Damage  done  to  the  vessel  by  jettison  of  a  deckload  is  admissible 
in  general  average,  even  when  the  jettison  is  not  so  made  good. 

Damage,  Avhich  the  cargo  has  accidentally  suffered  while  being 
stored  on  laud  at  the  port  of  refuge,  is  not  admissible  in  general 
average.  (In  that  case  the  goods  had  become  rusty  and  the  origin  of 
the  oxidization  was  not  clearly  established.) 

The  shipowner  is  entitled  to  contribution  for  damag-e  to  the  ship 
due  to  a  fault  of  the  master  in  the  navigation  of  the  vessel,  when 
the  contract  of  affreightment  contains  the  negligence  clause. 

Damage  done  to  machinery  and  boilers  of  a  steamer  in  endeavour- 
ing to  extricate  her  from  a  position  of  peril  caused  by  ice  is  admis- 
sible in  general  average  (as  under  Rule  VII.)  (i). 

These  notes  are  a  revision  of  the  comments  on  German  Law  con- 
tained in  the  former  editions  of  this  work,  for  which  the  editors  are 
indebted  to  Mr.  Oscar  Schwarz,  Average-Adjuster  of  Bremen.  For 
fuller  information  on  the  subject,  the  reader  is  referred  to  such 
treatises  as  Boyens,  "The  German  Maritime  Law";  Dr.  Georg 
Schaps,  "  The  German  Maritime  Law  ";  Heck,  "  The  Law  of  General 
Average";   Ulrich,  "On  General  Average,"  and  others. 


(()  Judgment  of  O.  L.  G.,  Hamburg,  1908,  iS..S'.  Uros. 


I 


560  APPENDIX  K. 


APPENDIX  K. 


THE  LAW  OF  GREECE. 

The  provisions  of  the  Law  of  Greece  which  deal  with  g-eneral  average 
constitute  the  Fifth  Part  of  the  Maritime  Code,  which  was  enacted 
on  the  17th  April,  1910,  and  came  into  force  on  the  1st  July,  1910. 
The  following  is  a  translation  of  this  part  of  the  Code:  — 

Art.  193.  By  averag-e  is  understood  all  extraordinary  expenses  in- 
ciu'red  on  account  of  the  ves.sel  and  the  carg'O,  jointly  or  separately,  and 
all  damag-e  that  may  happen  to  the  ship  and  the  cargo  after  the  load- 
ing and  departiu-e  until  the  arrival  and  unloading. 

There  are  two  kinds  of  average:  general  average  and  particular 
average.  '■ 

The  usual  expenses  of  entering  and  leaving  harbours,  rivers,  or 
canals,  and  navigation  dues,  are  not  average,  but  merely  expenses  to 
be  borne  by  the  vessel. 

When  there  is  no  special  agi-eement  between  the  parties,  averages 
are  regulated  by  the  following  provisions:  — 

Art.  194.  By  general  averag-e  is  understood  all  extraordinary 
expenses  and  voluntary  damage,  having  for  their  object  the  common 
benefit  and  preservation  of  the  ship  and  cargo.     Such  are:  — 

(1)  All  things  given  for  the  ransom  of  the  ship  and  cargo. 

(2)  All  things  throwTi  overboard  for  the  general  preservation. 

(3)  The  cables,  masts,  sails,  and  other  ajjparel  cut  away  for 

the  general  preservation,  also  those  broken  in  the  course 
of  the  operations  effected  for  the  general  preservation. 
(4j  The  anchors,  chains,  and  other  articles  abandoned  for  the 
common  safety. 

(5)  Damage  occasioned  by  jettison  to  the  goods  remaining  in 

the  vessel. 

(6)  Damage  occasioned  to  the  ship,  either  voluntarily  or  neces- 

sarily, by  jetti.son,  and  damage  occasioned  to  the  ship  in 
order  to  facilitate  the  j)reservation  of  the  cargo,  or  to 
assist  in  the  pumping  out  of  the  water,  and  all  damage 
,  occasioned  to  the  cargo. 


THE  LAW  OF  GREECE.  561 

(7)  Damag-e  oceasioued  to  the  slaip  and  cargo  by  reason  of  the 

oiDerations  for  extingnishing-  fire  occurring  in  the  ship. 

(8)  The  expenses  for  medical  treatment  and  maintenance  of 

the  seamen  wounded  in  defending-  the  ship,  and  all  their 
funeral  expenses  in  case  of  death. 

!  (9)  The  wag-es  and  maintenance  of  the  crew  during'  the  deten- 

^  tion  of  the  ship,  when  the  vessel  is  arrested  by  order  of 

a  sovereign  Power,  or  is  obliged  to  remain  in  a  port  on 
account  of  a  war  breaking  out,  or  of  other  similar  cause 

T  preventing  the  ship  from  sailing  for  its  destination,  as 

long  as  the  ship  and  cargo  have  not  been  released  from 

;,  their  respective  obligations. 

'  (10)  The  exjDenses  of  entering  and  leaving  a  harbour,  as  also  har- 

bour dues,  when  the  ship  is  compelled  to  enter  by  stress  of 
weather,  or  the  pursuit  of  an  eueni}'  or  of  pirates,  or  on 
account  of  a  leak  occasioned  by  accident  or  force  majeure. 

(11)  The  wages  and  maintenance  of  the  crew  whilst  compelled 

to  remain  in  the  harbour  during-  the  time  of  the  repairs 
to  the  vessel  necessary  for  the  continuation  of  the  voyage, 
when  these  repairs  fall  under  the  head  of  g'eneral 
average. 

(12)  The  expenses  of  unloading  and  reloading  articles   taken 

ashore  for  the  execution  of  the  above-mentioned  repairs 
during-  a  compulsory  stay  in  a  harbour,  the  expenses  of 
their  safe  custody  and  the  rent  of  warehouses  where  the 
goods  have  been  deposited. 

(13)  The  expenses  incurred  for  the  release  and  ransom  of  the 
detained  ship,  if  the  detention  was  not  due  to  reasons  only 
affecting  the  ship,  or  the  captain  or  shipowner,  also  the 
wag-es  and  maintenance  of  the  crew  during  the  delay 
necessary  for  such  release  and  ransom  of  the  ship,  if 
obtained. 

(14)  The  expenses  of  unloading-  in  order  to  lighten  the  ship,  in 
case  of  necessity  duo  to  stress  of  weather,  or  otherwise 
for  the  general  benefit  of  the  ship  and  cargo,  also  the 
damage  occasioned  to  the  ship  or  cargo  during  the  un- 
loading- and  reloading. 

(15)  The  damage  occasioned  to  the  vessel  or  the  cargo,  in  con- 
sequence of  the  voluntary  stranding  of  the  vessel  in  order 
to  prevent  the  loss  of  the  vessel  by  stress  of  weather, 
seizure,  or  other  pending  danger. 

(16)  The  expenses  incurred  in  g-etting  off  a  vessel  stranded 
for  reasons  specified  in  the  above-mentioned  parag-raph, 
and  the  remuneration  due  for  the  operations  undertaken 
and  services  given  in  these  circumstances. 

1"  o  o 


562  APPENDIX  K. 

(17)  The  losses  and  damage  incurred  by  the  articles  placed  in 

boats  in  order  to  lighten  the  ship  in  the  cases  mentioned 
in  the  14th  paragraph,  including-  the  amount  of  the  con- 
tribution due  to  these  boats  (a);  also  the  damage  in- 
curred by  goods  left  on  board,  if  such  damage  should  be 
considered  general  average. 

(18)  The  interest  of  the  bottomry  loan  contracted  for  the  pay- 

ment of  general  average  expenses,  and  the  insurance 
premiums  of  the  said  expenses,  also  the  indemnity  due 
to  the  owner  of  carg-'O  sold  during  the  voyage  at  a  port 
■which  the  ship  was  compelled  to  enter. 

(19)  The  expenses  of  adjusting  the  general  averages. 
Damage  occasioned  to  the  vessel,  or  the  expenses  incurred  for  it, 

do  not  fall  under  the  head  of  general  average,  although  incurred  for  the 
common  benefit  and  preservation,  if  they  result  from  an  inherent  defect 
or  the  unsoundness  of  the  ship,  or  if  they  result  from  the  negligence 
of  the  captain  or  crew. 

The  sails  and  rigging  and  other  apparel  of  the  vessel  jettisoned, 
also  the  anchors,  chains,  or  other  articles  abandoned,  although  volun- 
tarily, for  the  common  benefit  and  preservation,  are  not  brought  into 
the  adjustment  of  the  average,  if  they  are  not  duly  entered  in  the  in- 
ventory of  the  ship. 

Art.    195.   The   following  are  considered  general  average:  — 

(1)  The  sum  paid,  or  indemnity,  for  the  ransom  of  a  jnember  of 

the  crew  sent  ashore  in  the  service  of  the  ship  and  cap- 
tured or  detained  as  a  hostag-e. 

(2)  The  expenses  of  an  extraordinary  quarantine,  not  foreseen 

at  the  time  when  the  contract  of  affreightment  was  made, 
if  this  quarantine  concerns  both  the  ship  and  the  cargo, 
including  in  such  expenses  the  wages  and  maintenance  of 
the  crew  during  the  time  of  the  said  quarantine. 

Art.  19G.  If  a  jettison  .should  become  necessary,  the  least  necessary, 
the  most  weighty  and  the  least  valuable  articles  are  first  to  be  thrown 
overboard,  if  this  be  possible,  and  afterwards  the  goods  on  the  upper 
deck,  and  eventually  those  remaining. 

Art.  197.  Particular  averages  are  the  damage  and  expenses  incurred 
for  the  ship  only  or  for  the  cargo  only.    Such  are:  — 

(1)  Any  loss  or  damage  happening  to  goods  by  stress  of  weather, 
fire,  seizure,  shipwreck,  stranding,  leakage,  or  other 
casual  accident  or  force  majeure. 

(rt)  I.e.,  in  case  of  a  general  average  loss  sustained  by  any  of  these  boats,  the 
contribution  of  the  articles  placed  therein  to  this  loss.  Cf.  Art.  643  of  the  ItaKan 
Code,  post,  p.  G02. 


THE  LAW  OF  GREECE.  568 

(2)  The  loss  of  sails,  cables,  anchors,  rigging,  and  cordage,  also 

any  other  damage  caused  to  the  ship. 

(3)  Any    damage    hapj^ening   to   the    ship    or   goods    by    their 

inherent  defect. 

(4)  Expenses  resulting  from  putting  into  a  j^ort,  -when  occa- 

sioned by  the  ship's  inherent  defect,  by  the  influx  of 
water  on  account  of  the  unseaworthiness  of  the  ship,  by 
the  want  of  provisions  or  by  any  other  cause  due  to  the 
owner  of  the  ship  or  the  captain. 

(5)  The  wages  and  maintenance  of  the  crew  during  ordinary 

quarantine,  or  during-  the  repairs  made  on  account  of 
defects  or  unseaworthiness  of  the  ship,  or  on  account  of 
any  other  cause  due  to  the  owner  of  the  ship  or  the  cap- 
tain, whether  during  a  detention  or  stay  in  a  port  which 
concerns  the  ship  only  or  the  carg-o  only,  also  the  expenses 
incurred  in  such  a  case  for  the  release  of  the  one  or  the 
other. 

(6)  Expenses  incurred   for   the  preservation  of   the  carg^o,   or 

for  the  repair  of  the  casks,  cases,  or  packages  contain- 
ing it,  Avhen  these  expenses  do  not  arise  from  damage 
considered  general  average. 

(7)  The  excess   of   freight  mentioned  in   Art.    167(&). 

All  damage  occasioned  to  the  cargo  by  accident  arising  from  the 
negligence  of  the  captain  or  crew^  is  particular  average,  when  the 
captain  can  be  sued  or  an  action  can  be  brought  against  the  ship  and 
the  freight. 

The  captain  is  responsible  for  all  loss  occasioned  to  the  shipowner 
by  a  prolonged  and  unauthorized  stay  in  a  port. 

CONTRIBUTION. 

Art.  198.  Particular  averag-e  is  borne  and  paid  bj-  tlie  owner  of  the 
thing  which  lias  sustained  the  damage  or  occasioned  the  expense. 

General  average  is  apportioned  on  the  cargo  and  on  one-half  of  the 
ship  and  freight. 

The  value  of  the  sacrificed  things  is  included  in  making  up  the  total 
contributing  value. 

Art.  199.  The  provisions  of  the  ship  and  the  clothes  and  bag-gage  of 
the  crew  and  passengers  do  not  contribute  to  the  general'  average,  if 
saved;  the  value  of  those  thrown  overboard  or  damaged  shall  be  paid 
for  by  contribution  according  to  the  previous  article. 

(b)  Art.  167  is  as  follows :  "If  the  captain  is  obliged  to  have  the  vessel  repaired 
during  the  voyage,  on  account  of  accident  or  force  ma/cure,  the  charterer  is  bound  to 
■wait  during  the  time  of  the  repairs  or  to  pay  the  whole  freight.  If  the  captain,  in 
order  to  transmit  the  goods  to  their  destination,  ch^irters  another  ship,  the  new  freight 
contract  is  considered  to  be  made  for  the  account  of  the  charterer." 

oo2 


564  APPENDIX  K. 

Art.  200.  The  goods  for  which  there  is  no  bill  of  lading  or  declara- 
tion of  the  captain  are  not  to  be  paid  for  if  thrown  overboard;  they  shall 
contribute  if  saved. 

Art.  201.  The  effects  laden  on  the  deck  of  the  ship  always  contribute 
to  general  average,  if  saved. 

If  they  be  thrown  overboard  or  damaged  by  a  jettison,  the  owner 
has  no  claim  for  contribution;  his  only  remedy  is  to  bring  an  action 
against  the  ca])tain. 

Art.  202.  If  the  jettison  does  not  save  the  ship,  no  contribution  is 
made,  and  the  goods  saved  are  not  liable  for  the  payment  or  indemnity 
of  those  which  have  been  thrown  overboard  or  damaged. 

If  the  jettison  saves  the  ship,  but  if  in  continuing  its  voyage  the  ship 
is  afterwards  lost,  the  goods  saved  contriliute  to  the  jettison  on  their 
estimated  value  in  their  actual  condition,  deduction  being  made  of 
the  salvage  expenses. 

The  goods  jettisoned  do  not  in  an}-  case  contribute  to  the  payment 
of  damage  sustained  after  the  jettison  by  the  goods  saved;  and  in  the 
case  of  loss  or  unseaworthiness  of  the  ship,  the  goods  do  not  contribute 
to  the  paj-ment  of  the  loss  or  damage  Avhich  may  have  happened  to 
the  vessel. 

Art.  203.  If  the  goods  Avhich  had  been  placed  in  boats  in  order  to 
lighten  the  ship,  are  lost,  the  apportionment  for  contribution  is  made 
on  the  whole  ship  and  cargo. 

If  the  ship  is  lost  with  the  remaining-  cargo,  the  goods  which  had 
been  placed  in  boats  do  not  contribute  if  saved. 

Art.  204.  If,  after  tlie  adjustment,  the  jettisoned  goods  are  recovered 
by  the  owners,  they  are  bound  to  return  to  the  captain  and  the  parties 
interested  what  they  may  have  received  by  wa}^  of  the  contribution, 
deduction  being  made  of  the  damage  caused  by  the  jettison  and  the 
expenses  of  recovery. 

Art.  205.  The  ship  contributes  on  her  value  at  the  place  of  unload- 
ing, or  on  the  estimate  of  her  selling  price,  deduction  being  made  of 
particular  average,  including  that  sustained  after  the  general  average. 

The  freight,  which,  according  to  the  agreement  mentioned  in 
Art.  174,  is  considered  as  due,  does  not  contribute  (c). 

Art.  206.  The  goods  saved  and  those  thrown  overboard,  or  otherwise 
sacrificed  contribut/e  in  proportion  to  their  nett  value  at  the  place  of 
unloading. 

If,  as  regards  the  freight,  an  agreement  is  made,  as  mentioned  in 

(c)  Art.  174  ])rovides  that  "no  freight  is  due  for  oroods  lo.^t  by  shipwreck  or 
strandinor,  pillape  by  pirate.«,  or  rapture  by  f  nemies.  The  captain  if^  bound  to  refund 
the  freight  if  paid  in  advance,  unless  theie  be  an  agreement  to  the  contrary." 


THE  LAW  OF  GREECE.  565 

the  second  paragraph  of  the  preceding-  article,  the  freight  i.s  not  de- 
ducted from  their  value. 

Art.  207.  The  description,  nature,  and  (piality  of  the  goods  which 
contribute,  also  of  those  jettisoned  or  sacrificed,  is  determined  by  the 
production  of  the  bill  of  lading  and  invoices,  and  in  their  absence  br- 
other evidence. 

When  the  quality  or  value  of  the  goods  shipped,  as  declared  in  the 
bill  of  lading,  is  inferior  to  the  real  one,  the.se  goods  contribute  upon 
their  real  value,  if  saved,  but  if  jettisoned  or  damag-ed,  they  are  only 
paid  for  according  to  the  quality  and  value  fixed  by  the  bill  of  lading. 

And  vice  versa  when  the  quality  or  value,  as  declared,  is  superior 
to  the  real  one,  the  goods  sliipped  contribute  upon  the  declared  quality 
or  value,  if  saved,  but  if  thrown  overboard  or  damaged  are  onl}-  ])aid 
for  according  to  their  real  value. 

Art.  208.  The  captain  is  required,  as  soon  as  it  is  in  his  power, 
to  drav,'  up  a  written  report  stating-  all  the  steps  taken  and  operations 
performed  for  the  common  preservation. 

The  report  should  state  the  reasons  for  the  steps  taken  and 
synopticall}'  the  articles  sacrificed  or  damag-ed,  it  should  be  signed 
by  the  principal  members  of  the  crew,  or  the  reason  of  their  refusal  to 
sign  it  should  be  transcribed  in  the  ship's  log-book. 

A  copy  of  this  report,  signed  by  the  captain,  must  be  annexed  to 
the  report  mentioned  in  Art.   107  (cZ). 

Art.  209.  The  description,  valuation,  and  apportionment  of  the  losses 
and  damages  shall  be  drawn  up  at  the  place  of  discharge  of  the  ves.sel, 
at  the  instance  of  the  captain,  by  adjusters  appointed  in  Greece  bv  the 
President  of  the  Tribunal  of  First  Instance,  and  A\'here  there  is  noiio, 
by  the  magistrate,  abroad  by  the  Greek  Consular  Authority,  and  Avhere 
there  is  no  Greek  Consular  Authority,  b}^  the  competent  authority  of 
the  place. 

The  statement  drawn  up  b}'  the  adjusters  is  presented  in  Greece  to 
the  Tribunal  of  First  Instance  for  confirmafion;  abroad,  to  the  Greek 
Consular  Authority   or  the  competent  authority  of  the  place. 

Art.  210.  In  all  the  cases  above  mentioned,  the  captain  and  tli,> 
crew  have  a  lieu  on  the  goods  or  their  proceeds  for  the  amount  of  tho 
contribution. 

They  cannot  retain  the  goods  or  demand  the  sequestration  of  the 
same,  if  the  receiving  party  gives  security  for  the  payment  of  the 
contribution. 


[d)  Art.  107  requires  the  master,  in  the  event  of  accident,  to  furnish  a  report  to  the 
port  or  consular  authorities,  giving  full  particular.s  of  the  voyage,  the  jierils  encoun- 
tered, and  the  casualties  that  have  occui-red. 


;-,6()  APPENDIX  L. 


APPENDIX  L. 


THE  LAW  OF  HOLLAND. 


The  Law  of  Holland  dates  its  present  form  from  October  1,  1838. 
The  "Wetboek  van  Koophander'  was  then  definitely  promulgated  in 
conformity  to  a  royal  decree  of  April  in  the  same  year.  The  code  thus 
issued  was  the  result  of  the  handiwork  of  many  governments,  and  had 
been  drafted  and  revised  several  times.  Already  in  the  eighteenth  cen- 
tury, in  1768,  it  had  been  decreed  that  the  Laws  should  be  codified,  but 
no  draft  had  been  absolutely  formed  at  that  time.  Under  Louis  Bona- 
parte further  efforts  were  made,  and  a  draft  of  a  'Dutch  Commercial  Law 
which,  though  based  on  the  new  French  Code,  was  to  be  specially 
adapted  to  Holland  was  drawn  up.  This  Code  was  never  completed, 
owing  to  the  various  political  changes  that  came  on;  but  through  them 
all,  efforts  were  being  constantly  made  by  the  different  executives 
with  this  end  in  view,  so  that,  to  quote  Dr.  E.  N.  Rahusen,  of  Messrs. 
Dr.  E.  N.  Eahusen,  D.  Eiechelmann  &  Dr.  I.  H.  M.  van  Valkenburg, 
Average -Adjusters,  of  Amsterdam,  to  whom  we  are  indebted  for  the 
substance  of  whatever  is  written  in  this  Appendix  (a)  concerning  the 
law  and  practice  of  Holland,  "after  the  year  1809  drafts  were  made 
for  a  new  and  independent  Code  of  Commerce  in  1815,  1822,  1826,  and 

1834." 

This  Dutch  Code,  while  borrowing  its  form  and  several  detailed  pro- 
visions from  that  of  France,  contains  many  important  additions  and 
modifications,  and  retains  much  of  old  Dutch  law.  During  the  time  of 
the  union  with  Belgium,  the  projected  Code  was  revised  so  as  to  bring  it 
into  harmony  with  the  laws  of  Belgium,  but  at  the  very  moment  of  the 
completion  and  promulgation  of  this  Code  that  union  was  dissolved  in 
1830.  The  last  revisions  then  had  to  be  revised  again,  and  the  Code 
resumed  its  more  distinctly  Dutch  character. 

It  is  interesting  to  remark  how  much  the  commercial  law  of  the 
United  States  still  resembles  that  of  its  early  founders,  dating  no  doubt 
from  the  time  when  New  York  was  known  as  New  Amsterdam. 


{a)  Dr.  Eahusen  has  kindly  revised  the  Appendix  for  this  edition,  and  contributed 
some  additional  information  which  has  been  incorporated  therein. 


THE  LAW  OF  HOLLAND. 


56i 


TWEEDE  BOEK. 
TIT  EL. 


ELFDE 


Van  Avarijen. 

Eerste  Afdeeling-. 

Van  de  Avarijen  in  het  Algemeen. 

§  696.  Alio  buitengewone  on- 
kosten  ten  diensten  van  het  schip 
en  de  goederen  gezamcnlijk  of 
afzonderlijk  gemaakt;  alle  schade, 
die  aan  het  schip  en  de  goederen 
overkomt,  gedurende  den  tijd,  bij 
de  derde  afdeeling  van  den  ne- 
genden  titel  ten  aanzien  van  het 
beginnen  en  eindigen  des  gevaars 
bepaald,  wordeji  als  avarij  gere- 
kend . 

§  697.  Indien  tusschen  j)artijen 
niet  anders  is  bedongen,  worden  de 
avarijen  geregeld  overeenkomstig 
de  navolgende  bepalingen. 

§  698.  Er  zijn  twee  sorten  van 
avarijen: 

Avarij -grossc  of  gemeene  ava- 
rij, en  eenvoudige  of  bijzonderc 
avarij. 

De  eerste  wordt  omgeslagen  over 
het  schip  en  de  vraehtpenningeii, 
en  de  lading;  de  laatste  komt  ten 
laste  van  het  schip  of  van  het  goed 
afzonderlijk,  hctwelk  de  schade 
geleden  of  do  oiikosten  veroor- 
zaakt  heeft. 

§  699.  Getneojie  avarijen  /.iju: 

1°.  Hetgeen  aan  den  vijand  of 
aan  zceroover.s  voor  bevrijding  of 
afkoop  van  schip  en  lading  ge- 
geven  is.  In  geval  van  twijfel, 
wordt    het    steeds     daarvoor     ge- 


BOOK  II.     CHAPTER  XI. 


Of  Averages. 

First  Section. 

Of  Averages  in  General. 

§  696.  All  extraordinary  ex- 
penses incurred  for  the  good  of 
the  ship  and  the  goods  together  or 
separate;  all  damage  coming  to 
the  ship  or  goods,  during  the  time 
fixed  in  the  third  section  of  the 
ninth  chapter  for  the  beginning 
and  ending  of  the  risk,  are  con- 
sidered as  averaofe. 


§  697.  If  not  otherwise  agreed 
between  the  parties,  averages  are 
adjusted  according  to  the  follow- 
ing rules. 

§  698.  There  are  two  kinds  of 
averages : 

Gross  or  general  average,  and 
simple  or  jiarticular  average. 

The  iirst  is  assessed  on  the  ship, 
the  freight, and  the  cargo;  the  last 
comes  to  the  special  charge,  either 
of  the  ship  or  that  portion  of  the 
goods  which  has  suffered  the 
damage  or  occasioned  the  expense. 


§  699.   To  general  average  be- 


long: 


1.  Whatever  is  given  to  enemies 
or  pirates  for  the  liberation  or 
ransom  of  the  ship  and  cargo.  In 
case  of  doubt,  it  is  always  to  be 
a-ssunied    that    the    ransom     was 


568 


APPENDIX  L. 


houden,  dat  de  afkoop  in  het 
belang-  van  schip  on  lading  heeft 
plaate  gcliad; 

2°.  Hetgeen  tot  gemeen  belioud, 
of  ten  gemeenen  nutte  van  schip 
en  lading,  heeft  inoetea  worden 
geworpen; 

3'.  Kabels,  niasteu,  zeilen  en 
andere  gereedschappeu,  die  men, 
ten  zelfden  einde,  heeft  gekapt  of 
gebroken ; 

4°.  Ankers,  touwen  en  andere 
voorwerpen,  die  men  almede,  ten 
zelfden  einde,  is  genoodzaakt  ge- 
weest  te  laten  slippen; 

0°.  De  schade  aan  de  in  het  schij) 
gebleven  goederen,  door  het  over 
boord  werpen  veroorzaakt; 

6°.  De  schade,  die  aan  het  lig- 
chaam  van  het  schip  opzettelijk  is 
toegebragt  om  het  werpen  en 
ligten  of  bergen  der  goederen  ge- 
makkelijk  te  maken,  of  om  de 
waterloozing  te  bevorderen,  en  de 
schade  die  alsdan  door  dat  water 
aan  de  lading  is  toegebragt; 

7°.  De  oppassing,  genezing.  het 
onderhoud  en  de  schadeloosstelling 
van  alle  zich  aan  boord  bevindende 
personen,  die  bij  het  verdedigen 
van  het  schip  gewond  of  verminkt 
zijn  geraakt; 

8°.  De  schadeloostelling  of  het 
rantsoen  van  hen  die,  in  dienst  van 
het  schip  of  de  lading  naar  zee  of 
naar  land  zijnde  afgezonden,  gene- 
men,  gevangen,  gehouden  of  slaaf 
gemaakt  zijn; 


made  in  the  interest  of  ship  and 
cargo ; 


2.  Whatever,  for  the  common 
safety  or  common  benefit  of  ship 
and  cargo,  has  been  thrown  over- 
board; 

3.  Cables,  masts,  sails,  and 
other  apparel  which  have  for  the 
same  pur])nse  been  cut  or  broken; 


4.  Anchors,  hawsers,  and  other 
articles  which  for  the  same  pur- 
pose it  has  been  necessary  to  slip; 


3.  The  damage  caused  by  a 
jettison  to  the  goods  remaining  on 
board ; 

t).  Damage  purposel}'  done  to 
the  hull  of  the  ship  to  facilitate 
the  jettison,  lightening,  or  saving 
of  the  cargo,  or  the  escape  of 
water,  together  with  any  damage 
that  may  be  done  to  the  cargo  by 
the  water  in  consequence; 


7.  The  cost  of  nursing,  doctor- 
ing, maintaining,  and  indemnify- 
ing all  persons  on  board  who  have 
been  hurt  or  maimed  in  the  de- 
fence of  the  ship; 


8.  The  indemnification  or  ran- 
som of  those  who,  having  been  sent 
off  in  the  service  of  the  ship  and 
cargo  by  sea  or  land,  have  been 
captured,  imprisoned,  detained,  or 
made  slaves; 


THE  LA.W  Ob^  HOLLAND. 


•309 


9"^.  De  gag'ien  en  liet  ouderlioud 
van  het  scheapsvolk  gedureiide  den 
tijd,  dat  het  schip  is  verpligt 
geweest  zieh  in  eene  noodhaven  op 
te  houden: 


10°.  De  loodsgelden  en  verdere 
havenkosten  die  bij  het  in-  on 
uitzeilen  naar  en  van  eene  nood- 
haven moeten  betaald  worden; 


'.).  The  wages  and  maintenance 
of  I  ho  crew  during  the  time  tliat 
tlie  ship  has  been  obliged  to  lie 
up  in  a  port  of  refuge  (7;); 


10.  The  pilotage  and  other  port 
dues  incurred  in  entering  and 
poming  out  of  a  port  of  refuge; 


(b)  The  wages  and  provisions  of  the  crew,  from  the  time  of  bearing  up  for  such  a 
port  until  the  ship  is  ready  to  resume  lier  voyage,  are  in  practice  admitted  into  general 
average  ;  and  this,  whether  the  first  cause  of  bearing  up  has  been  the  result  of  sacrifice 
or  of  accident.  The  Code  speaks  only  of  the  wages  and  victuals  during  the  detention 
in  port,  but  the  practice,  not  illogically,  goes  further,  and  commences  the  allowance 
from  the  moment  of  bearing  up.  The  allowance  for  provisions  is,  as  in  the  United 
States,  regulated  by  a  fixed  scale. 

The  cost  of  fuel  and  engine  stores  consumed  by  a  steamer  in  bearing  up  for  a  port 
of  refuge  is  in  practice  treated  as  in  general  average.  The  Code  is  silent  on  this  point, 
but  the  practice  agrees  with  the  principle  of  Nos.  9  and  10. 

If  the  cargo  has  been  discharged  in  the  port  of  refuge,  and  if  the  ship,  in  order  that 
she  may  be  repaired,  must  take  in  ballast  and  sail  to  some  other  place,  where  there  is  a 
dry  dock,  on  whom  should  fall  the  expenses  of  ballasting  the  ship,  proceeding  to  such 
second  port,  and  returning  thence  in  ballast  to  the  place  where  the  goods  have  been 
deposited  ?  The  expense,  as  well  of  going  to  the  dry  dock  as  of  returning,  says 
Dr.  Rahusen,  should  be  treated  as  particular  average  on  ship,  being  in  fact  a  portion 
of  the  cost  of  repairing  her. 

Cargo  destroyed  by  fire  in  a  warehouse,  after  having  been  discharged  for  the 
common  safety,  is  not  general  average,  but  loss  on  cargo  ;  and  if  the  cargo  is  only 
damaged  by  or  in  consequence  of  fire,  it  is  particular  average  on  cargo. 

The  cost  of  fire  insurance,  however,  is  treated  as  general  average.  This  charge 
appears  in  most,  if  not  all,  countries,  to  be  treated  in  the  same  way  as  the  charge  for 
warehouse  rent.  It  may  also  be  considered  as  a  guarantee  for  the  expenses  to  be 
incurred  in  the  port  of  distress,  and  as  a  necessary  consequence  of  the  stay  in  the  port. 

Temporal}-  repair  at  a  port  of  refuge  is,  as  a  rule,  not  admitted  into  general  average, 
even  when  such  repair  is  of  no  permanent  value  to  the  ship.  If,  however,  by  means 
of  such  temporary  repair,  there  is  a  saving  of  expenditure  Avhich  would  be  general 
average,  as,  for  instance,  if  by  this  means  a  discharge  of  cargo  is  avoided,  the  practice 
is  to  admit  such  temporary  repair  into  general  average. 

In  the  event  of  a  jettison,  followed  by  the  ship*.s  putting  into  a  port  of  refuge,  the 
goods  jettisoned  must  contribute  towards  the  general  average  resulting  from  such 
putting  in,  as  if  they  had  remained  on  board :  it  being  a  rule  strictly  adhered  to  in 
Dutch  practice,  that  the  goods  jettisoned  must  not  be  in  a  bettor  position  than  the 
goods  which  remain  on  board.  For  the  same  reason,  if  it  is  clearly  proved  that  the 
goods  jettisoned,  had  they  remained  on  board,  must  have  suffered  damage  by  a 
subsequent  accident,  as,  for  instance,  if  the  whole  cargo  has  been  submerged  and 
recovered,  a  damaged  value  only  is  allowable. 


570 


APPENDIX  L. 


11°.  De  huren  der  pakliuizeu  en 
bergplaatsen  waarin  de  goederen 
die  in  het  schip  gedurende  de  re- 
paratie  in  eene  noodhavea  niet 
kunnen  blijven,  mooten  opge- 
slagen  worden; 

12°.  De  reclaino-ko.sten,  indicn 
schip  en  lading-  zijn  aang-ehoudcn 
of  opgebragt  en  beiden  door  den 
schipper  worden  gereclameerd; 

13°.  De  gagien  en  het  onderhoud 
van  het  scheepsvolk,  gedurende  do 
voorz.  reclame,  indien  schip  en 
lading  worden  vrijgegeven; 


14°.  De  kosleii  van  ontlading,  de 
ligterlooneu,  mitsgaders  de  kosten 
om  het  schip  in  eene  haven  of  rivier 
in  te  brengen,  wanneer  hetzelve 
door  storm,  vervolging  van  vijan- 
den  of  zeeroovers  of  uit  eenio-e 
andere  oorzaak,  tot  behoud  van 
schip  en  lading  daartoe   genood- 


1 1 .  The  hire  of  warehouses  or 
depositories  for  holding  the  goods 
which  cannot  remain  on  board  the 
ship  during  the  repair  in  a  port  of 
refuge  (c); 


12.  The  cost  of  reclamation,  in 
case  the  ship  and  cargo  are  ar- 
rested or  captured,  and  both  are 
reclaimed  by  the  captain; 

1.'!.  The  wages  and  maintenance 
of  the  crew  during  such  a  reclama- 
tion, in  case  ship  and  cargo  are 
released ; 

14.  The  cost  of  discharging  and 
the  hire  of  lighters,  together  with 
the  cost  of  bringing  the  ship  into 
a  harbour  or  river,  Avhenever,  by 
reason  of  storm,  pursuit  of  enemy 
or  pirate,  or  any  other  cause,  this 
becomes  necessary  for  the  safety 
of  the  ship  and  cargo  (d) ;  as  also 


(c)  Loss  of,  or  damage  to,  cargo,  resulting  from  a  forced  discharge,  is  treated  in 
Holland  in  a  peculiar  manner,  not  very  consistent,  but  perhaps  recommended  by  con- 
siderations of  practical  good  sense.  If  the  cargo  is  discharged  to  lighten  the  stranded 
ship,  such  loss  or  damage  is  always  treated  as  general  average.  But  when  the  cargo  is 
discharged  at  a  port  of  refuge,  in  order  to  repair  the  ship,  or  for  its  own  preservation, 
then,  if  the  cargo  is  discharged  in  boats  or  lighters,  the  loss  is  general  average :  but  it 
is  not  so  if  the  cargo  is  landed  directly  on  the  quay.  Dr.  Rahusen  remarks  on  this  : 
"  The  true  principle  seems  to  be  that  adopted  at  the  York  Congress,  viz. :  that  the 
damage  is  general  average  if  the  discharge  took  place  in  a  manner  unusual  at  the  port 
of  distress,  but  that  it  is  particular  average  if  the  cargo  was  discharged  in  the  usual 
way.  Of  course,"  he  adds,  "this  is  modified  if  the  York-Antwerp  Rules,  1900, 
are  to  be  applied,  in  which  the  distinction  between  usual  and  unusual  modes  of  dis- 
charging has  entirely  disappeared." 

[d)  With  regard  to  cargo  lost  or  damaged  in  discharging  it  out  of  the  ordinary  course 
of  things  for  the  common  safety,  the  practice  is  as  follows  :  If  the  cargo  is  discharged, 
whether  by  means  of  lighters  or  otherwise,  in  order  to  float  a  stranded  ship,  then,  pro- 
vided the  cost  of  discharging  is  general  average,  all  loss  or  damage  to  cargo  in  the 
process  is  likewise  so  treated.  If,  however,  the  cargo  is  discharged  at  a  port  of  refuge, 
whether  because  the  ship  or  cargo  or  both  are  in  danger,  or  merely  for  the  purpose  of 
making  necessary  repair  to  the  ship  that  she  may  prosecute  her  voyage,  a  distinction  is 
made  between  discharging  by  means  of  lighters  and  discharging  direct  to  the  quay  : 


THE  LAW  OF  HOLLAND. 


571 


zaaki  wordt;  benevous  liet  verlies 
of  de  schade  aan  goederen  over- 
gekoraen  door  derzelver  lossing  en 
inlading,  uit  iiood,  iu  lig-ters  of 
booten,  en  derzelver  wederinlad- 
ing-  in  het  sehip ; 


the  loss  or  damage  ol'  the  goods 
occasioned  by  such  forced  dis- 
charge and  loading  into  lighters 
and  boats,  and  by  reloading  them 
in  the  ship; 


lu°.  De  schade  aan  het  scliip  of 
aan  de  lading  of  aan  heiden  voroor- 
zaakt,  wanneer  het  schip  om  het 
gevaar  der  neming  of  van  het 
vergaan  le  voorkomen,  opzettelijk 
is  oj)  strand  gezet,  gelijk  mede 
indien  zulks  in  eenig  ander  drin- 
gend  gevaar  tot  behoud  van  schip 
en  lading  heeft  plaats  gehad; 


15.  The  damage  done  to  the  .ship 
and  to  the  cargo  when,  to  prevent 
the  danger  of  capture  or  loss,  the 
ship  is  purposely  run  ashore;  like- 
wise if  in  any  other  pressing- 
danger  the  same  measure  is  taken 
for  the  safety  of  the  ship  and 
cargo  (e) ; 


in  the  former  case,  any  loss  or  damage  to  the  cargo  in  the  process  is  treated  as  general 
average,  in  the  latter  it  is  not.  The  gi-ound  of  this  distinction  is  stated  to  be,  that  the 
damage  is  general  average  if  the  discharge  took  place  in  a  manner  unusual  at  the  port 
of  distress,  but  not  so  if  the  cargo  was  discharged  in  the  usual  way.  This  argument, 
it  is  to  be  observed,  leaves  out  of  sight  the  not  unimportant  circumstance  that  the  dis- 
charging at  the  port  of  refuge  was  in  itself  an  unusual  operation.  We  do  not  learn, 
however,  that  the  question  has  yet  come  before  the  Courts.  For  the  effect  of  the 
York- Antwerp  Rules,  1900,  see  note  (c),  supra. 

In  the  event  of  a  jettison,  followed  by  a  second  independent  general  average,  such 
as  the  putting  into  a  port  of  refuge,  the  goods  jettisoned  must  contribute  to  this  second 
general  average,  just  as  if  they  had  been  on  board ;  it  being  a  rule  strictly  adhered  to 
in  Dutch  practice,  that  the  goods  jettisoned  must  not  in  the  end  be  in  a  better  position 
than  if  they  had  remained  on  board.  For  the  same  reason,  if  it  is  clearly  proved  that 
the  goods  jettisoned,  if  they  had  remained  on  board,  must  have  suffered  damage  b}'  a 
subsequent  accident,  as,  for  instance,  if  the  whole  cargo  has  been  submerged  and 
recovered,  a  damaged  value  only  is  recoverable.     (See  note  {a),  xupra.) 

(e)  ''  Voluntary  stranding.  The  ship  Glenduror  was  lying  at  anchor  near  the  shore, 
a  pilot  on  board.  A  storm  arose,  both  cables  parted,  and  they  immediately  spread 
sails  to  try  to  wear  and  get  clear  off  from  the  shore.  This  endeavour  soon  proved 
fruitless  ;  the  ship  was  drifting  ashore,  and  so  the  crew  by  the  pilot's  advice  chose  a 
suitable  safer  spot  on  the  coast  in  order  (as  the  protest  puts  it)  '  by  a  voluntary  strand- 
ing at  that  place  to  save  the  lives  of  those  on  board,  whilst  hoping  also  to  save  ship 
and  cargo  thereby.'  The  ship  did  actually  get  off  later  with  very  little  damage,  and 
the  cargo  was  only  slightly  the  worse.  This  case  was  submitted  to  arbitration,  and  it 
was  decided  that  in  this  case  a  voluntary  stranding  in  the  sense  of  §  699,  No.  15,  of 
the  Code,  had  taken  place,  and  hence  the  damages  done  to  the  hull  of  the  Glenduror 
belonged  to  general  average.  The  view  that  it  was  probable  and  almost  certain  that 
the  ship  in  any  case  would  have  stranded,  does  not  prevent  this  stranding  being 
regarded  as  an  intentional  one.  The  stranding  which  would  have  happened  later  at 
another  spot  would  have  been  of  quite  a  different  character  ;  in  fact,  in  the  same 
storm  nianv  other  vessels  were  wrecked.     The  intentional  stranding  on  a  convenient 


572 


APPENDIX  L. 


16°.  De  kosteii  en  de  hulplooueu 
om  liet  gestraiide  schip  in  liet 
voorg-aand  g-eval  weder  vlot  te 
niaken,  en  alle  belooning-  voor 
buitengewone  diensteu,  ten  einde 
het  verlies  of  de  neming  van  hot 
aehip  te  voorkonien; 

17^.  Het  verlies  of  de  schade 
door  de  g'oederen  g-eleden  die  in 
geval  van  nood  in  ligiers  of  booten 
zijn  geladen,  daaronder  begrepen 
het  aandeel  in  de  avarij-gros  door 
die  goederen  aan  de  ligters  of 
booten  verschuldigd,  en  "weder- 
keerig  het  verlies  of  de  schade  aan 
de  in  het  principale  schip  geble- 
vene  gooderen,  en  aan  het  schip 
zelf,  na  de  ligting  overgekomen, 
voor  zoo  verre  die  schade  of  dat 
verlies  in  avarij-gros  vallen; 


IG.  The  expenses  and  payment 
for  assistance  in  order  that  the  ship 
stranded  as  in  the  preceding  case 
may  be  got  afloat  again,  and  all 
payments  for  extraordinary  ser- 
vices, in  order  to  prevent  the  loss 
or  capture  of  the  ship  (/) ; 

17.  The  loss  or  damage  suffered 
bv  o-oods  which  in  case  of  need  are 
laden  in  lighters  or  boats,  includ- 
ing therein  the  share  of  general 
average  which  the  goods  may  owe 
to  such  lighters  or  boats;  and  re- 
ciprocally the  loss  or  damage  to 
the  goods  remaining  in  the  prin- 
cipal ship,  or  to  the  ship  herself, 
occasioned  hy  the  lightening,  so 
far  as  such  damage  or  loss  be- 
longs to  general  average  (g) ; 


spot  was  evidenth-  effected  with  the  intention  of  saving  ship  and  cargo,  and  this 
measure  all  through  bore  the  character  of  general  average,  namely,  intentionally  and 
with  premeditation  to  sacrifice  a  part  of  the  whole  (in  this  case,  the  ship),  in  order  to 
preserve  the  rest.  (Magazijn  van  Handelsregt,  xii.,  1870,  p.  166.)"  More  recently. 
\-iz.,  in  1880  and  1887.  it  was  decided  by  arbitration  in  two  cases  of  stranding  that 
voluntary  stranding  had  not  taken  place,  if  a  stranding  of  the  ship  was  in  any  event 
inevitable. 

There  seems  to  be  no  distinction  made  with  regard  to  cases  of  voluntary  stranding, 
whether  the  ship  is  got  off  again  or  becomes  a  total  wreck. 

(f)  If,  at  the  time  of  taking  out  the  cargo  from  a  stranded  ship,  there  is  no  reason- 
able prospect  of  saving  her,  then  the  expense  of  discharging  is  in  practice  not  treated 
as  general  average,  but  as  a  specific  charge  on  the  cargo  saved,  and  on  the  freight,  if 
any,  which  is  saved  by  the  same  operation.  If,  on  the  other  hand,  it  was  at  the  time 
expected  that  the  ship  would  be  saved  by  lightening  her,  then  the  whole  expense  is 
general  average  down  to  the  time  when  the  last  portion  of  cargo  is  removed  from  the 
ship.  Hence,  if  a  portion  of  the  cargo  is  first  brought  into  safety,  and  subsequently 
the  ship,  with  the  remainder  of  the  cargo  on  board,  is  towed  afloat,  the  whole  expense 
from  first  to  last  is  made  general  average :  the  portion  of  cargo  already  in  safety  must 
contribute  towards  the  expense  of  towing  off  the  partially  laden  ship.  This  is  so,  even 
though  the  stranding  may  take  place  so  near  to  the  port  of  destination  that  the  cargo 
is  taken  thither  directly  as  discharged,  and  is  never  reunited  to  the  ship.  If,  however, 
the  whole  of  the  cargo  is  first  taken  out,  and  carried  to  its  destination,  and  the  empty 
ship  is  then  towed  off,  the  ship  contributes  to  the  cost  of  discharging  the  cargo,  but 
the  cargo,  being  in  safety,  does  not  contribute  to  the  expense  of  towing  off  the  ship. 

{gi)  This  clause  is  evidently  a  modification  of  the  well-known  rule  of  Roman  law  on 
this  head.     By  that  rule,  if,  for  the  common  safety,  goods  are  transhipped  into  a 


THE  LAW  OF  HOLLAND. 


573 


18°.  De  g-agien  en  het  onder- 
houd  van  het  scheepsvolk,  indien 
het  schip,  na  het  begin  der  reis, 
door  eene  vreenide  mogendheid,  of 
door  het  uitbarsten  van  eenen 
oorlog,  wordt  opgehouden,  zoo 
lang  schip  en  lading  niet  van  alle 
wederzijdsche  verbindtenissen  zijn, 
ontslao-en; 


18.  The  wages  and  maintenance 
of  the  crew  in  case  the  ship,  after 
the  commencement  of  the  voyage, 
is  arrested  bv  a  foreig-n  Power,  or 
through  the  breaking  out  of  Avar, 
so  long  as  ship  and  cargo  are  not 
released  from  all  reciprocal  en- 
gagements ; 


19°.  De   bodemerij -premie  van  19.   The  bottomry  premium  on 

geldsommen  tot  dekking  der  on-     sums    of   money    raised    to    cover 
kosten,    in    avarij-gros    vallende,  !  expenses     belonging     to     general 


opgenomen ; 

20°.  De  premie  om  de  kosten, 
bij  het  vorige  nommer  vermeld,  te 
doen  verzekeren,  of  het  verlies 
hetwelk  door  het  verkoopen  van 
een  gedeelte  der  lading  in  eene 
noodhaven  is  geleden,  ten  einde 
die  avarij -kosten  te  dekken: 


average ; 

20.  The  premium  of  insurance 
to  cover  the  charges  mentioned  in 
the  preceding  number;  and  the 
loss  incurred  through  a  sale  of  a 
portion  of  the  cargo  in  a  port  of 
refuge,  in  order  to  cover  average 
expenses; 


21''.  De  kosten  op  het  opmaken  '       21.  The  expenses  connected  with 


en  bepalen  der  avarij -grosse  val- 
lende ; 

22°.  De  kosten,  daaronder  be- 
grepen  de  meerdere  gagien  en  het 
onderhoud  van  liet  scheepsvolk, 
veroorzaakt  door  eene  buitensre- 
wone  en  bij  het  sluiten  der  be- 
vrachting  niet  voorzione  quaran- 
taine,  voor  zoo  verre  het  schip  en 
de  ingeladene  voorwerpen  daaraan 
zijn  onderworpen; 


the  drawing  up  and  adjusting  of 
the  general  average; 

22.  The  expenses,  including  the 
increased  wages  and  cost  of  main- 
tenance of  the  crew,  occasioned  by 
a  quarantine  which  is  extraordi- 
nary and  not  provided  for  in  the 
contract  of  affreightment,  so  far  as 
the  ship  and  goods  on  board  are 
subject  thereto;  and 


lighter,  and  the  lighter  is  lost  in  a  storm  while  the  ship  is  safe,  the  ship  and  goods  on 
board  shall  contribute  to  the  loss  of  those  in  the  lighter,  whereas  if  the  ship  is  lost  in 
the  storm  while  the  lighter  is  safe,  there  shall  be  no  contribution ;  becHuse  by  the 
transhipment  the  goods  in  the  lighter  were  exposed  to  a  greater  risk,  whereas  the  ship 
and  goods  left  in  her  were  not.  To  the  Dutch  legislators  it  has  appeared  more 
equitable  that  there  should  be  a  reciprocity  between  the  two. 


574  APPPINDIX  L. 

23°.     L)      het     alg-emeen     alle  23.  In  general,  all  losses  which 

schaden  die  uit  nood,  opzettelijk  are  purposely  incurred  in  case  of 

veroorzaakt,  en    als    onmiddellijk  danger  or  distress,  and  their  im- 

gevolg  van  dien,  g-eleden  zijn,  en  [  mediate  consequences,  as  also  ex- 

de  kosten  die,  in  gelijke  omstan-  i  penses  which,  in  the  like  circum- 

digheden,  na  de  vereischte  raad-  j  stances,  after  due  deliberation,  are 

pleging-,  zijn  gemaakt  tot  behoud  '  incurred     for      the     preservation 

eu  genieen  welzijn  van  sehip  on  and   common   good   of    ship   and 

lading.  cargo  (h)  (i). 


{/>)  At  this  point  we  may  state  the  practice  in  Holland  in  cases  not  specified  in  the 

Code. 

(1)  Damage  by  cutting  a  ship  open  to  extract  the  cargo  is  general  average.  In  case 
the  ship  is  not  eventually  got  off  the  ground  or  floated,  the  amount  allowable  is,  not 
two-thirds  of  the  cost  of  repairing,  but  the  diminution  of  the  proceeds  of  the  ship, 
resulting  from  such  cutting. 

When  the  wreck  of  spars  and  sails  is  cut  away,  the  mast  ha-ving  previously  been 
carried  away,  the  practice  under  ordinary  circumstances  is,  to  allow  in  general  average 
one  half  of  two-thirds  of  the  cost  of  new  materials,  as  representing  the  damaged  value. 

Damage  to  flails  used  to  force  a  stranded  ship  o£P  the  ground  is  general  average.  So 
likewise  is  damage  to  a  steamer's  machinery  worked  for  the  same  purpose. 

With  regard  to  coals  consumed  during  such  working  of  the  engines,  the  practice  is 
to  treat  this  item  as  general  average. 

Damage  done  to  a  ship  in  resisting  the  attack  of  an  enemy  or  pirate  is  considered  as 
o-eneral  average.  With  regard  to  the  ammunition  expended,  the  better  opinion  seems 
to  be,  that  this  is  not  general  average,  since  that  is  the  very  purpose  for  which  the 
ammunition  is  put  on  board.  There  is.  however,  no  express  legislation  or  practice  on 
either  of  these  points ;  and  cases  of  this  kind  are,  of  course,  at  the  present  time  of  rare 

occurrence. 

J3amage  done  to  a  ship  in  order  to  extinguish  a  fire  is  general  average. 

Cargo  damaged  by  water  poured  or  let  into  the  ship  to  extinguish  a  fire  is  general 

average. 

Hawsers  and  other  ship's  materials  carried  on  deck  contrary  to  good  seamanship, 

and  thrown  overboard,  are  not  general  average. 

Frcss  of  Sail. — Damage  done  by  carrying  a  press  of  canvas  to  beat  off  a  lee  shore  or 
escape  an  enemy  is  not  regarded  as  general  average. 

Jettison  on  account  of  ignition  is  general  average  if  the  fire  was  caused  in  conse- 
quence of  a  leak  sprung  during  a  gale.  But  if  the  condition  of  the  cargo  when  shipped 
caused  the  subsequent  ignition,  it  is  vice  propre  of  the  cargo,  and  no  claim  for 
contribution  can  be  made.  But  Dr.  Rahusen  is  of  opinion  that  the  shipowner  can 
claim  freio-ht  for  the  cargo  jettisoned  from  the  shipper,  and  he  is  no  doubt  entitled  to 
damages  caused  by  the  fault  of  the  shipper. 

(2)  Damage  by  dncking  a  ship  in  a  gale  is  not  considered  general  average  in  Holland. 
Dr.  Rahusen  is  of  opinion  that  there  is  really  no  difference  in  principle  between  such 
damage,  and  the  damage  a  ship  may  sustain  from  grounding  at  the  entrance  of  a  port 
of  refuge. 

(i)  "  Protest.— The  costs  of  a  protest  in  order  to  prove  general- average  damages 
belong  to  general  average.     (Mag.  v.  H.,  xvi.  p.  24i.)  "— (UL,  p.  94.) 

"  Costs  of  Cnreeninff.—A  ship  had  got  aground  by  accident,  and,  in  order  to  get  her 
off,  had  to  be  lightened  of  her  cargo.    From  this  a  general  average  case  sprung,  .so  that 


THE  LAW  OF  HOLLAND. 


575 


§  700.  Wanueer  iiiwendige  ge- 
breken  vau  het  schiiJ,  deszelfs  ou- 
deugdzaamlieid  tot  het  doen  der 


§  700.  When  the  inherent  defect 
of  the  ship,  her  unfitness  to  per- 
form the  voyage  (k),  or  the  fault 


to  estimate  the  contributory  value  of  the  ship,  she  had  to  be  careened.  But  also,  as 
she  had  sustained  damages  to  the  hull  by  the  stranding,  those  had  to  be  surveyed  and 
considered  whether  the  bottom  needed  repair.  Consequently  the  costs  of  this  careening 
are  only  to  be  taken  at  half  their  amount  in  general  average,  and  not  at  the  whole 
cost,  as  the  adjuster  regarded  it.     (Mag.  v.  H.,  vii.  p.  281.)  " — (Ul.,  p.  94.) 

{k)  "(a)  Unseaworthiness.  The  ship  Q?««<e<  was  chartered  for  a  voyage  from  Java, 
or  Sumatra,  to  Amsterdam,  just  after  it  had  been  repaired  in  Soerabaija  under  the 
superintendence  of  experts.  The  loading  of  the  vessel  with  produce  took  place  in 
Soerabaija  and  Passaroean,  but  after  leaving  this  last  port  the  voyage  could  only  be 
carried  on  as  far  as  Batavia,  since — so  the  shipowners  maintained — between  Passaroean 
and  Batavia  the  ship  encountered  a  violent  storm,  in  consequence  of  which  she  sus- 
tained serious  damages,  and  the  cargo  also  became  partially  injured.  In  Batavia  the 
damaged  part  of  the  cargo  had  to  be  sold,  and  the  Quintet  herself  was  condemned  as 
not  worth  repairing.  The  rest  of  the  cargo  was  delivered  at  Amsterdam  by  another 
vessel.  The  shipowner  declared  himself  ready  to  pay  the  proceeds  of  the  cargo  sold  in 
Batavia,  after  deducting  the  contribution  lying  on  it  for  general  average,  &c.  The 
shipper  demanded,  however,  compensation  for  the  full  value  of  the  goods  sold,  and 
refused  to  contribute  at  all  to  general  average,  because  the  damages  and  costs  had 
arisen  from  the  ship's  unseaworthiness,  the  captain  not  having  succeeded  in  provino- 
that /o)w  «z<y«(>e  had  prevented.his  delivering  the  entire  cargo.  The  shipper  gained 
his  cause  on  the  following  grounds  :  It  was  acknowledged  by  both  parties  that  the 
crew,  after  they  had  taken  in  the  full  cargo  at  Pass-aroeau,  refused  to  continue  the 
voyage  because  the  Qiiintct  leaked.  In  consequence  of  this,  experts  were  nominated, 
who  certified  that  the  ship  actually  did  leak.  If  the  vessel  had  not  had  her  hull 
repaired  so  recently,  they  would  have  advised  the  discharge  of  the  cargo  either  wholly 
or  in  part,  in  order  to  discover  the  leak  ;  under  existing  circumstances  the  experts  did 
not  consider  this  absolutely  indispensable,  and  saw  no  risk  in  the  Quintet  goin"-  on  to 
Batavia,  where  she  was  to  complete  her  crew,  and  where  a  more  certain  opinion  about 
the  state  of  her  hull  could  be  obtained.  From  this  decision  of  the  experts  it  follows 
that  there  was  no  recognition  of  the  seaworthy  condition  of  the  ship  for  a  voyage  from 
Java  to  Holland,  and  the  defendant  could  not  fall  back  upon  the  experts  ha  vino- 
ascribed  the  Quintet's  leaking  to  her  having  lain  so  long  dry  during  the  repairs  at 
Soerabaija,  since  in  their  report  after  they  had  not  said  anything  of  findui"-  a  leak. 
The  certificate  of  seaworthiness  immediately  given  after  the  above  repairs,  althou"-h 
drawn  up  in  good  faith,  lost  its  force,  since  the  same  experts  five  weeks  later,  after  the 
ship  was  luaded,  had  formed  quite  a  different  opinion.  That  this  .second  was  the 
right  view  was  proved  by  the  report  at  Batavia.  This  stated  that  the  longitudinal 
frame  of  the  ship  was  loose,  that  several  waterways  below  and  above  deck  were  broken 
and  that  the  whole  vessel  more  than  before  had  strained  in  her  form.  One  can  only 
speak  of  a  further  .straining  when  some  certain  alteration  of  the  form  of  the  vessel  has 
already  taken  place.  From  all  these  circuinstauces  the  unseaworthiness  of  the  Quintet 
is  clearly  deduced,  and  the  owner  is  bound  to  compensate  the  full  value  of  that 
part  of  the  cargo  that  was  not  delivered,  and  to  bear  alone  the  whole  expenses. 
(Mag.  V.  H.,  xi.  p.  100.) 

' '  (b)  Unseaworthiness.  Breaking  down  of  engine.  The  British  steamer  Eunncll  was 
six  days  out  on  a  voyage  from  Galatz  to  Rotterdam,  when  suddenly  from  some 
unexplained  cause  the  cylinder  cover  burst,  and  the  engine  could  work  no  more.     The 


;">7(; 


APPENDIX  L. 


loize,  ol:'  sehuld  eu  ualatiglieid  van 
den  schipper  of  het  scheepsvolk,  do 


or   neglect    of   the    captain  (I)    or 
crew,  has  occasioned  the  damage 


steamer  had  to  bo  towed  into  Malta  and  have  the  damages  repaired  there.  The  costs 
thus  incurred  were  brought  into  general  average,  but  the  cargo  owners  refused  to 
contribute  because  the  incapable  condition  of  the  engine  had  occasioned  the  expenses. 
The  Court  decided,  however,  in  favour  of  the  shipowner,  because  according  to  ^  700 
it  is  the  business  of  the  cargo  owners  in  such  a  case  to  bring  proof  of  unseaworthiness. 
The  Court  did  not  accept  the  proof  from  the  position  of  eye-witnesses,  because  it  did 
not  exclude  the  possibility  that  the  bursting  of  the  cover  might  have  resulted  from 
causes  which  could  be  esteemed /occe  majeure.     (Mag.  v.  H.,  xvii.  p.  141.) 

''(c)  Insufficient  outfit.  Extra  consumption  of  coal.  The  sh\-g  Eliza  Hunting,  irom. 
Soerabaija  to  Amsterdam,  took  in  at  Point  de  Galle  a  fresh  supply  of  coal  for  the 
voyage  thence  to  Aden.  On  the  way  she  encountered  high  contrary  winds,  so  that  her 
supply  of  fuel  was  exhausted  when  stUl  3-53  miles  off  Aden.  She  made  signals  of 
distress,  and  she  received  from  the  British  steamer  Hongkomi  18  tons  of  coal,  by  using 
which  she  reached  Aden.  The  price  of  this  coal  did  not  belong  to  general  average, 
because  the  captain  ought  to  have  been  prepared  for  contrary  winds,  and  to  have 
supplied  himseif  at  Point  de  Galle  with  a  sufficient  supply  of  coal.  (Mag.  v.  H.,  xvi. 
p.  247.)"— (UL,  p.  94.) 

{V)  Fault  of  the  captain.  The  ship  Blue  had  taken  in  at  Archangel  a  cargo  of 
linseed  for  ZwoUe,  in  Holland.  Shortly  after  leaving  Archangel  she  had  a  collision, 
and  was  damaged.  After  needful  repairs  at  Archangel  she  resumed  her  voyage,  had 
to  encounter  violent  storms  on  the  way,  and  arrived  at  last  at  Nieuwe  Diep.  As  long 
ago  as  before  the  second  time  of  leaving  Aa-changel  the  captain  had  asked  the  con- 
signees whether  they  woidd  not  agree  to  his  delivering  the  cargo  at  Nieuwe  Diep, 
since  lighters  could  be  sent  there  to  receive  the  cargo  and  take  it  on  board  them  up  to 
Zwolle.  Afterwards,  on  reaching  Nieuwe  Diep,  the  captain  wrote  again  to  the  same 
effect  to  the  freighters,  because  he  thought  his  ship  was  too  crank,  and  could  not  lie 
in  Zwolle  safely  without,  cargo.  The  day  after  this  second  request  was  made,  the 
captain  telegraphed  and  wrote  again  to  the  consignee,  now  declaring  that  the  ship 
was  leaky,  the  cargo  heated,  and  consequently  immediate  lighterage  was  necessarj-. 
In  fdct,  in  the  course  of  several  days  it  was  certified  by  experts  that  the  cargo  was 
badly  heated,  and  the  ship  rather  leaky.  The  consignees  of  the  linseed  protested  on 
the  other  hand,  and,  after  long  negotiations,  at  last  it  was  agreed  that  the  repaired 
ship  should  take  in  again  the  sound  part  of  the  cargo,  aud  deliver  it  at  Amsterdam,  all 
rights  reserved.  This  was  done  ;  but  the  cargo-owners  refused  to  pay  any  costs  at  all 
of  the  EUne  during  her  delay  at  Nieuwe  Diep,  and  the  Judge  decided  in  their  favour 
on  the  foUowhig  grounds  :  "  The  captain  was  bound  by  Dutch  law  to  fulfil  his  voyage 
as  quicky  as  possible  ;  in  putting  into  a  port  of  refuge  he  had  to  take  counsel  with 
shipowner,  shippers  as  far  as  they  are  present,  and  with  the  officers  of  the  crew. 
The  captain  liad  not  any  right  to  run  into  Nieuwe  Diep  as  a  port  of  orders,  for  the 
destination  of  the  cargo  to  Zwolle  had  not  been  altered.  The  necessity  of  running  into 
Nieuwe  Diep  had  not  been  sufficiently  proved.  A  ship's  council  had  not  been  held, 
an  obli^'atiou  to  run  in  on  account  of  sea-disaster  had  not  been  deposed,  and  it  did  not 
appear  that  the  repairs,  which  principally  concerned  the  former  collision-damages, 
mio-ht  not  have  been  put  off  a  short  time  longer.  Zwolle  could  have  been  reached  in 
a  day  from  Nieuwe  Diep,  and,  instead  of  this,  the  captain  lost  a  whole  week  in 
correspondence.  In  his  first  letter  from  Nieuwe  Diep  to  the  consignee  the  captain  did 
not  rest  on  the  necessity  of  the  repairs  of  his  ship  at  all  as  a  reason  for  having  to 
discharge,  but  on  the  crankness  of  the  vessel.     (Mag.  v.  H.,  ii.  p.  211.)"  — (Ul.  p.  97.) 


THE  LAW  OF  HOLLAND. 


57- 


schade  of  onkosten  hebbeu  veroor- 
zaakt,  zi  jn  laatstgemelden,  hoezeer 
ten  nutte  van  schip  en  lading-  vrij- 
willig  en  na  vereischte  raadpleging 
gemaakt,  geene  gemene  avarij. 

§  701.  Bijzondeie  avarijen  zijn: 

1°.  Alle  schaden  en  verliezen  aan 
het  schip  of  aan  de  lading  overge- 
komeu  door  storm,  neming,  schip- 
breuk  of  toevallige  stranding; 

2°.  Bergloonen  en  de  kosfcen  bij 
berging  uitgegeven; 

3°.  Het  verlies  van,  en  de  schade 
geleden  aan  kabels,  anlters,  tou- 
wen,  zeilen,  boegspriet,  stengen, 
ra's,  booten  en  scheepsgereed- 
schappen,  veroorzaakt  door  storm 
of  ander  onheil  op  zee; 

4°.  Reelame-kosfcen  en  het  on- 
derhoud  en  de  gagien  van  het 
scheepsvolk     gedurende     de     re- 


or  expense,  such  damage  or  ex- 
pense, although  incm-red  pur- 
posely, after  due  deliberation,  and 
for  the  common  benefit  of  ship  and 
cargo,  is  not  general  average  (m). 

§  701.  Particular  averages  are: 

1 .  All  damage  and  loss  occurred 
to  the  ship  or  cargo  by  storm,  cap- 
ture, shipwreck,  or  casual  strand- 
ing; 

2.  Salvage  and  the  disburse- 
ments made  at  the  saving; 

3.  The  loss  of,  and  the  damage 
caused  to  cables,  anchors,  cordage, 
sails,  bowsprit,  topmasts,  yards, 
boats,  and  tackle,  by  storm  or 
other  mischief  at  sea; 


4.  The  charges  of  reclaiming, 
and  the  maintenance  and  wages 
of  the  crew  during  the  reclaiming, 


(m)  Dr.  Rahusen  is  of  opinion  that  the  Code  here  only  refers  to  claims  on  the  part  of 
the  shipowner  ;  and  leaves  it  an  open  question  whether  a  merchant  whose  goods  have 
been  jettisoned  from  an  unseaworthy  ship  m.ay  not  claim  contribution,  in  the  first 
instance,  from  the  other  owners  of  cargo ;  each  having  a  right  of  eventual  recourse 
against  the  shipowner.     (Compare  §  73:i  of  the  Code.) 

In  no  country  is  the  doctrine  of  seaworthiness  so  strongly  maintained  against  ship- 
owners and  captiins  as  in  Holland.  The  captain  has  to  prove  by  sea-protest  and  log- 
book such  perils  as  may  be  deemed  sufficient  to  have  caused  the  damage.  If  not 
successful  in  this  proof,  there  is  a  presumption  against  him,  and  he  is  entitled  neither  to 
claim  in  general  average  nor  to  recover  from  the  underwriters.  No  great  weight  is 
attached  to  the  certificates  of  surveyors  before  the  voyage,  and  they  do  not  exonerate 
the  captain  from  showing  sea-peril  as  the  cause  of  the  disaster.  Art.  479  of  the  Code 
runs  thus : 

"  The  charterer  owes  no  freight,  and  has  a  right  to  damages,  if  it  is  proved  that  the 
ship  at  the  commencement  of  the  voyage  was  not  in  a  fit  state  to  perform  it.  Such 
proof  is  allowed  notwithstanding  and  against  the  certificates  of  survey  before 
sailing." 

This  is  extended  in  practice  to  cover  matters  of  general  average  and  insurance.  The 
onus  prohandi  falls  on  the  captain,  and  the  practical  result  is  that,  as  a  general  rule, 
Dutch  ships  are  always  kept  in  a  perfectly  seaworthy  condition. 

Hence  jettison  caused  by  unseaworthiness  gives  no  claim  in  general  average. 
L.  P  P 


678 


APPENDIX  L. 


clame,  indien  slechts  het  schip  of 
de  lading  zijn  aangehouden ; 

5°.  Die  bijzondere  reparatien 
der  fustage  en  de  kosten  van  be- 
redding  der  beschadigte  koopman- 
schappeu,  voor  zoo  verre  dit  een  en 
ander  niet  het  onmiddellijk  gevolg 
is  van  eene  ramp  die  tot  avarij- 
gros  aanleiding  geeft; 

6°.  De  uieerdere  vracht  en  de 
onkosten  van  laden  en  lessen 
welke,  bij  afkeuring  van  een  schip 
gedurende  de  reis,  moeten  betaald 
worden,  in  de  gevallen  waarin, 
volgens  de  bepalingen  van  art.  478 
van  het  Wetboek,  de  goederen  door 
een  ander  schip  voor  rekening  van 
de  inladers  worden  vervoerd;    en 

7°.  Ill  het  algeiueen,  alle  sehade, 
verliezen  en  de  gemaakte  onkosten 
die  niet  zijn  veroorzaakt  of  ge- 
maakt  opzettelijk  en  tot  behoud  en 
gemeen  welzijn  van  schip  en  lad- 
ing, maar  die  zijn  geleden  door  of 
gemaakt  ten  behoeve  van  het 
schip  alleen,  of  voor  de  lading 
alleeu,  en  welke  dien  volgens, 
iiaar  aanleiding  van  art.  699,  niet 
onder  avarij-gros  behooren. 

§  702.  Wanneer  een  schip  uit 
hooide  vap  steeds  bestaande  droog- 
teu,  ondiepten  of  banken,  met  zijne 
voile  lading,  noch  van  de  plaats 
v/aar  het  vertrekken  meet,  noch 
iiaar  de  plaats  van  deszelfs  be- 
sfceniming  kan  gevoerd  worden,  en 


if  only  the  ship,  or  the  cargO'  alone, 
have  been  seized; 

5.  The  special  repairs  of  casks 
and  the  expenses  of  bringing  in 
order  the  damaged  merchandise, 
for  as  much  as  they  are  not  the 
direct  consequence  of  any  casualty 
which  constitutes  general  average ; 


6.  The  sui'plus  freight  and  the 
charges  of  loading  and  unloading, 
which  must  be  paid  if  the  ship  is 
condemned  during  the  voyage,  in 
the  cases  in  which  the  goods  are 
forwarded  by  another  vessel,  for 
account  of  the  shippers,  according 
to  the  stipulations  of  the  478th  art. 
of  this  Code ;  and 

7.  Generally,  all  damage,  loss, 
and  expenses  made  which  are  not 
caused  or  incurred  purposely  and 
for  the  preservation  and  common 
good  of  ship  and  cargo,  but  which 
have  been  sustained  or  incurred 
on  behalf  of  the  ship  alone,  or  for 
the  cargo  alone,  and  which  conse- 
quently, according  to  §  699,  do  not 
belong  to  general  average  (n). 


§  702.  When  a  shijD  is  prevented 
by  existing  shoals,  shallows,  or 
banks,  from  leaving  the  place  of 
departure  or  reaching  her  place  of 
destination  with  her  full  cargo,  and 
a  part  thereof  must  thus  be  con- 
veyed to  the  ship  by,  or  discharg-ed 


(/<)  Cost  of  repair.'?  to  cargo  at  a  port  of  refuge,  when  damaged  by  accident,  is  par- 
ticular average. 


THE  LAW  OF  HOLLAND. 


579 


alzoo  een  gedeelte  der  lading  met      in  lighters,  such  lighterage  is  not 
ligters   aangevoerd    of    in   ligters      considered  as  average  (o;. 
luoet  gelost  worden,  worden  zoo- 
danige  ligter-loonen  niet  als  avarij 
beschouwd. 

De  kosten  komen  ten  laste  van 
het  schip,  ten  zij  bij  cognoseemen- 


Tlie  expenses  are  to  be  borne 
by  the  ship,  if  no  other  agreement 
ten  of  de  chertepartij  een  ander  [  has  been  made  by  the  bills  of 
beding  zij  gemaakt.  ^  lading  or  charterparty  (p). 


§  703.  De  bepalingen  van  de 
arts.  698,  699,  700,  en  701,  ten 
aanzien  van  de  gemeene  en  bijzon- 
dere  avarijen,  zijn  insgelijks  toe- 
passelijk  op  de  zoo  evengemelde 
ligterschepen  en  op  de  voorwerpen 
in  dezelve  geladen. 

§  704.  Indien  gedurende  de 
vaart,  het  zij  aan  de  ligterschepen, 
het  zij  aan  de  goederen  in  dezelve 
geladen,  eene  schade  overkomt, 
welke  tot  gemeene  avarij  behoort, 
wordt  deze  voor  een  derde  door  de 
ligterschepen,  en  voor  twee  derden 
door  de  aan  boord  van  dezelve  zich 
bevindende  goederen,  gedragen. 

Deze  twee  derden  worden  ver- 
volgens  bij  wijze  van  avarij -gros 


§ 


703.  The  rules  respecting 
general  and  particular  average 
contained  in  §§  698,  699,  700,  and 
701  likewise  apply  to  the  lighters 
just  mentioned  and  the  objects 
loaded  in  the  same. 


§  704.  If,  during  their  naviga- 
tion, any  damage  comes  to  the 
lighters  or  to  the  goods  loaded 
therein  which  belongs  to  general 
average,  one -third  thereof  is  sup- 
ported by  the  lighters,  and  two- 
thirds  by  the  goods  which  are  on 
board  of  them  at  the  time. 

These  two-thirds  are  afterwards 
assessed  as  general  average,  on  the 


(o)  ^'  Lighterage  in  the  ordinary  course  of  the  voyage. — A  captain  cannot  justify  his 
putting  into  another  port  (Nieuwe  Diep)  near  the  port  of  destination  (ZwoUe)  and 
discharging  cargo  there,  by  saying  that  be  could  not  reach  that  port  of  destination  on 
account  of  the  great  draught  of  his  vessel.  His  delay  at  Nieuwe  Diep,  and  the 
discharge  of  the  cargo  itself  was  not  warrantable ;  it  only  followed  from  the  ship's 
draught  that  the  captain  was  authorized  to  transfer  the  cargo  into  lighters  at  Nieuwe 
Diep,  and  at  his  own  charges  to  get  it  forwarded  to  ZwoUe.  (Mag.  v.  H.,  ii.  p.  218.)" 
— (Ul.  J).  100.)     See  supra,  p.  516,  note  (/). 

{p)  "  Lighterage  in  the  ordinary  course  of  the  voyage.  —The  words  appended  in  English 
charter-parties  as  to  the  delivery  at  the  port  of  destination  '  or  so  near  thereunto  as  she 
may  safely  get,'  do  not  free  the  ship  from  bearing  the  lighterage  costs  which  are 
necessary  to  bring  the  vessel  down  to  such  a  draught  as  to  enable  her  to  get  up  to  the 
port  of  destination.  (Mag.  v.  H.,  iv.  1862,  p.  123  ;  ihid.  xvii.  1875,  p.  123.)  On  the 
other  hand,  it  has  also  been  decided  that  when  the  chai-ter-party  contains  this  clause,  the 
captain  is  not  liable  for  the  cost  of  lighterage,  which  must  be  borne  by  the  consignees. 
(Mag.  V.  H.,  vi.  p.  239  ;  ibid.  x.  p.  271.)" 

p  p  2 


580 


APPENDIX  L. 


omgeslagen  over  het  principale 
schip,  de  vrachtpenningen  en  de 
geheele  lading;  die  der  ligtersche- 
pen  daaronder  begrepen. 

§  705.  Wederkeerig  blijven  de 
goederen,  in  de  ligterschepen  ge- 
laden,  in  gemeenschap  met  het 
principale  schip  en  de  overige  lad- 
ing, en  dragen  in  de  gemeene  ava- 
rijen,  welke  aan  het  schip  en  de 
lading  mogten  zijn  overgekomen, 
tot  op  het  oogenblik  dat  de  eerst- 
gemelde  ter  plaatse  hunner  be- 
stemming  zullen  zijn  gelost,  en  aan 
de  geconsigneerden  overgeleverd. 

§  706.  Goederen  die  nog  niet 
zijn  ingeladen,  het  zij  in  het  princi- 
pale schip,  het  zij  in  de  vaartuigen 
bestemd  ora  dezelve  naar  het  schip 
over  te  voeren,  dragen  in  geen 
geval,  in  de  rampen  die  aan  het 
principale  schip  waarin  dezelve  ge- 
laden  moeten  worden,  overkomen. 

§  707.  De  schade,  aan  de  koop- 
mansehappen  overgekomen  uit 
hoofde  dat  de  schipper  verzuimd 
heeft  de  luiken  digt  te  sluiten,  het 
schip  behoorlijk  vast  te  maken, 
bekwame  werktuigen  tot  het  hij- 
schen  te  bezorgen,  en  door  alle  an- 
dere  ongevallen,  uit  opzet  of  achte- 
loosheid  van  den  schipper  of  het 
scheepsvolk  voorkomende,  zijn  bij- 
zondere  avarijen,  waarvoor  de  in- 
lader  zijn  verhaal  heeft  op  den 
schipper,  het  schip  en  de  vracht. 

§  708.  De  loods-,  sleep-  en  an- 
dere  gelden  om  de  havens  of  rivier- 
en  in  of  uit  te  loopen,  alle  tollen 


principal  ship,  the  freight,  and  the 
whole  cargo,  including  that  of  the 
lighters. 


§  705.  Reciprocally  the  goods 
laden  in  the  lighters  continue  in 
common  with  the  principal  ship 
and  the  remainder  of  the  cargo^ 
and  participate  in  the  general  aver- 
ages which  may  have  come  to  the 
ship  and  cargo,  till  the  moment  the 
first-named  shall  have  been  landed 
at  their  place  of  destination  and 
delivered  to  the  consignees. 


§  706.  Goods  not  yet  laden  either 
in  the  principal  ship  or  in  the  ves- 
sels destined  to  convey  them  toher,. 
do  not  in  any  case  participate  in 
tlie  casualties  befalling  the  princi- 
pal ship  in  which  they  are  to  be 
laden. 


§  707.  Damage  come  to  the  mer- 
chandise in  consequence  of  the 
master  having  neglected  to  close 
the  hatches,  to  make  the  ship  pro- 
perly fast,  or  to  provide  proper 
means  of  hoisting,  and  of  all 
other  misfortunes  caused  by  de- 
sign or  carelessness  of  the  master 
or  crew,  is  particular  average, 
for  which  the  shipper  has  his  re- 
course against  the  master,  the  ship, 
and  the  freight. 


§  708.  The  pilotage,  towage,  and 
other  dues  to  enter  or  leave  har- 
bours or  rivers,  all  tolls  and  ex- 


THE  LAW  OF  HOLLAND. 


581 


en  uitgaven  bij  het  afvaren  en 
voorbij  zeilen,  alle  tonne-,  anker-, 
vuur-en  baak-gelden,  en  alle  au- 
dere  reg-ten,  die  tot  de  scheepvaart 
betrekkelijk  zijn,  zijn  geene  ava- 
rijen,  niaar  gewone  kosten  voor 
rekening  van  het  schip ;  ten  zij  bij 
het  eognoscement  of  de  cherte- 
partij  anders  bedongen  zij. 

Diese  kosten  komen  nimraer  ten 
laste  van  de  verzekeraars,  ten  zij 
in  het  bijzonder  geval,  dat  dezelve 
zijn  het  gevolg  van  eenige  onvoor- 
ziene  en  buitengewone  omstandig- 
heden  g-edurende  de  reis  opgeko- 
men. 

§  713.  Ingeval  van  schade  aan 
eeii  verzekerd  schip,  door  zeerarap 
geleden,  draagt  de  verzekeraar 
slechts  twee-derden  der  kosten,  tot 
de  reparatie  vereischt,  ora  het  even 
of  dezelve  al  of  niet  hebbe  plaats 
gehad,  en  zulks  in  evenredigheid 
van  het  verzekerde  to  het  onverze- 
kerde  gedeelte.  Een  derde  blijft 
voor  rekening  van  den  verzekerde 
wegens  vooronderstelde  verbeter- 
ing'  van  oud  tot  nieuw. 

§  714.  Indien  de  reparatie  heeft 
plaats  gehad,  wordt  het  bedrag  der 
kosten  bewezen  door  rekenin^en 
en  alle  andere  uiiddelen  van 
bewijs,  en,  des  noods,  door  be- 
grooting  van  deskundigen. 


penses  at  the  de|>arture  or  passage, 
all  tonnage,  anchorage,  beaconage, 
or  light  dues,  and  all  other  duties 
relative  to  navigation,  are  not  aver- 
age but  usual  expenses  for  ac- 
count of  the  ship,  unless  it  be 
otherwise  agreed  upon  by  the 
bill  of  lading  or  the  charterpartj. 

These  expenses  never  come  to 
the  charge  of  the  underwriters,  un- 
less in  the  particular  case  of  their 
being  the  consequence  of  some  un- 
foreseen and  extraordinary  cir- 
cumstances occurring  during  the 
voyage. 

§  713.  In  case  of  damage  to  an 
insured  ship,  sustained  by  perils  of 
the  sea,  the  underwriter  only  bears 
two-thirds  of  the  costs  of  the  re- 
pairs, whether  they  have  actually 
taken  place  or  not,  and  this  in  pro- 
portion of  the  insured  to  the  unin- 
sured part.  One-third  remains  for 
account  of  the  insured  to  set  off  the 
supposed  amelioration  by  new  for 
o\d(q). 


§  714.  If  the  repairs  have  taken 
place,  the  amount  of  the  costs 
thereof  is  proved  by  accounts,  and 
any  other  evidence,  and,  if  need 
be,  by  an  estimate  by  experts. 


(q)  "  Deduction  of  a  third  for  ship's  gear  sacrificed. — The  rule  of  $§  713,  716,  about  the 
deduction  for  difference  between  new  and  old,  applies  also  to  general  average.  The 
law  lays  the  onus  probandi  that  the  article  was  new,  and  consequently  not  liable  to 
deduction,  on  the  captain  on  account  of  the  shipowner.  The  rule  of  §  716,  that  no 
deduction  lakes  place  if  the  ship  is  new  and  on  her  first  voyage,  does  not  apply  with 
regard  to  its  gear,  but  the  captain  must  give  proof  that  the  sacrificed  article  (in  the 
■case  of  some  hawsers  disputed)  is  new.     (Mag.  v.  H.,  xvi.  p.  246.)" — (Ul.  p.  103.) 


582 


APPENDIX  L. 


In  geval  de  reparatie  niet  ge- 
daan  is,  wordt  het  bedrag  derzelve 
door  deskundigen  begroot. 


If  the  repairs  have  not  been 
done,  the  amount  thereof  is  esti- 
mated by  experts. 


§  715.  Indien  het,  dee  needs  na 
verhoor  van  deskundigen,  blijkt, 
dat  door  de  gedane  reparatie,  de 
waarde  van  het  sohip  meer  dan  een 
derde  is  vermeerderd,  betaalt  de 
versekeraar,  in  evenredigheid  als 
bij  §  713  is  vermeld,  het  voile  be- 
loop  der  gemaakte  kosten,  onder 
aftrek  der  door  verbetering  ver- 
meerderde  waarde. 


§  71.5.  When  it  appears,  if  need 
be  from  the  experts'  report,  that 
the  value  of  the  ship  has  increased 
by  more  than  one-third,  owing  to 
the  repairs,  the  underwriter  pays, 
in  the  proportion  mentioned  in 
§  713,  the  full  amount  of  the  ex- 
pense incurred,  after  deducting 
the  increase  of  value. 


§  716.  Indien  daarentegen  de 
verzekerde,  des  noods  na  begroot- 
ing  als  voren,  bewijst,  dat  de  re- 
paratie geene  verbetering  of  ver- 
merdering  der  waarde  van  het 
sohip,  hoegenaamd,  heeft  te  weeg 
gebragt,  en  wel  bepaaldelijk 
doordien  het  schip  nieuw  en  op 
deszelfs  eerste  reize  de  schade  heeft 
geleden,  of  doordien  de  schade  is 
aangekomen  aan  nieuwe  zeilen  of 
nieuw  scheepsgereedschap,  of  wel 
aan  ankers,  ijzeren  ketting-kabels  I 
of  aan  eene  nieuwe  koperen  huid, 
heeft  de  aftrek  van  een  derde  gcen 
plaats,  en  is  de  verzekeraar  ver- 
pligt  het  geheel  beloop  der  re- 
paratie-kosten,  in  evenredigheid 
als  bij  §  713  is  vermeld.  te  ver- 
goeden. 


§  716.  On  the  other  hand,  if  the 
assured  proves,  if  need  be  by  the 
report  as  aforesaid,  that  the  value 
of  the  ship  has  not  been  aug- 
mented in  any  way  by  the  repairs, 
especially  from  her  being  new,  and 
having  suffered  the  damage  on  her 
first  voyage,  or  by  the  damage 
havino-  occurred  to  new  sails  or 
new  tackle,  or  to  anchors,  chain- 
cables,  or  new  copper  sheathing, 
then  the  deduction  of  one-third 
does  not  take  place,  and  the  under- 
writer is  bound  to  make  good  the 
whole  costs  of  the  repairs,  in  the 
proportion  mentioned  in  §  713  (r). 


(r)  This   article  applies  iu  terms  ouly  to  particular  average,  but  in  practice  no  di.s- 
tinctioii  is  drawn  between  particular  and  general  average  in  this  respect. 


THE  LAW  OF  HOLLAND. 


583 


Tweede  Afdeeliiig-. 

Van  het  omslaan  en  dragen  der 
avarij-grosse  of  gemeene  avarij. 

§  722.  De  berokening  eu  verdeel- 
ing  vail  avarij-grosse  geschiedt  ter 
plaatse,  waar  de  reis  eindigt,  ten 
zij  partijen  deswege  andere  be- 
dingen  hebbcu  g-emaakt. 


§  723.  Bij  het  stakeii  eerier  reis 
binnen  dit  land,  of  bij  stranding 
der  sehepen  aldaar,  worden  de  re- 
kening  en  verdeeling  opgeniaakt 
ter  plaatse,  van  waar  de  scliepen 
binnen  dit  land  zijn  vertrokken  of 
hadden  nioet'On  vertrekken. 


§  724.  i)e  berokening  en  ver- 
deeling der  avarij -gro.sse  worden 
gedan  ten  verzoeko  van  den 
schippor  en  door  dcskundigen. 

De  deskundigen  worden  be- 
noemd  door  de  partijen  of  door  de 
regtbank  van  arrondissement  der 
plaat.s,  waar  de  berekening  en  ver- 
deeling binnen  het  koningrijk 
gesehieden  inoeten. 

De  deskundigen  moeten  Avorden 
beeedigd,  voor  dat  zij  hunne 
werkzaaniheden  beginnen. 

De  verdeeling  meet  worden  ge- 
homologeerd  door  de  regtbank  van 
het  arrondissement. 


Second  Section. 

Of  the  Assessment  and  Apportion- 
ment of  General  Average. 

§  722.  The  adjustment  and  ap- 
portionment of  the  general  aver- 
age should  be  made  at  the  place 
where  the  voyage  ends,  unless  the 
parties  thereto  have  sii])ulated 
otherwise. 

§  723.  In  ease  of  the  interrup- 
tion of  the  voyage  within  this 
country,  or  of  the  stranding  of  the 
ship  there,  the  adjustment  and 
apportionment  is  to  be  made  up 
at  the  place,  in.  this  country,  from 
which  the  ship  set  sail  or  was  to 
have  set  sail. 

§  724.  The  estimate  and  appor- 
tionment of  general  average  are 
made  at  the  request  of  the  master, 
and  by  experts. 

The  experts  are  appointed  by 
the  parties  or  by  the  district 
court  (s)  of  the  jjlace  where  the 
estimate  and  apportionment  must 
bo  made  in  tbis  country. 

The  exports  must  be  swi.irn  pre- 
vious to  beginning  their  work . 

The  apportionment  must  be  sanc- 
tioned by  the  district  court  (^). 


(«)  ^'' Non-renmiciation  of  authorized  experts. — If  the  captaiu  and  the  consignees  in 
India  have  agreed  '  to  bring  to  Amsterdam  the  case  in  dispute,  as  to  the  existence  or 
non-existence  of  a  general  average  in  case  the  average  statement  is  made,'  this  is 
nothing  more  than  a  deviation  from  the  rule  that  the  assessment  and  distribution  are  to 
be  made  where  the  voyage  ends,  but  not  an  agreement  to  leave  the  assessment  and  dis- 
tribution to  adjusters  at  the  captain's  option.  (Mag.  v.  H.,  xv.  p.  141.)" — (Ul. 
p.  107.) 

[t)   "The  custom,"  says  Dr.  Eahuseu,  "  is  thai    tlie  adjuster  .is  appointed  by  the 


584 


APPENDIX  L. 


Buiten's  lands  wordt  de  avarij- 
gros  door  de  aldaar  daartoe  be- 
voegte  magt  opgemaakt. 

§  725.  Bij  eene  geheele  staking 
der  reis  onder  weg,  of  verkooping 
van  de  lading  in  eene  noodhaven, 
beide  buiten  dit  land  voorvallende, 
Avorden  de  vordering,  berekening 
en  verdeeling  der  schade  gedaan 
ter  plaatse,  alwaar  zoodanige  stak- 
ing of  verkoop  voorvalt. 


gemeene 


avarijen 


§    727.    De 
worden  gedragen: 

Door  de  waarde  van  het  sehip  in 
den  staat  waarin  hetzelve  aange- 
komen  is,  met  bijvoeging  van  liet- 
geen  bij  vergoeding  van  gemeene 
avarij  wordt  verstrekt; 

Door    de    vracht,    onder   aftrek 


In  foreign  parts,  the  general 
average  is  adjusted  by  the  autho- 
rity eompeteiit  there. 

§  725.  In  case  of  the  entire 
breaking  up  of  the  voyage  on  the 
way,  or  of  a  sale  of  the  cargo  in  a 
port  of  refuge,  taking  place  out  of 
this  country,  the  claim,  adjust- 
ment, and  apportionment  of  the 
loss  is  to  be  made  at  the  place 
where  such  breaking  up  or  sale 
occurs  (u). 

§  727.  General  average  is  to 
be  borne: 

By  the  value  of  the  ship  in  the 
condition  in  which  she  arrives, 
with  addition  of  whatever  is  com- 
pensated in  general  average  (x) ; 

By  the  freight  (y),  after  deduc- 


iiiterested  parties,  and  that  the  adjustment,  if  disputed,  is  submitted  in  Amsterdam  to 
the  decision  of  a  permanent  committee  of  three  legal  men  of  standing,  who  give  their 
opinion  without  appeal.  In  Rotterdam  the  dispute  is  submitted  to  the  ordinary  juris- 
diction of  the  Courts." 

(m)  When  a  ship  is  wrecked  or  condemned  at  a  port  of  refuge,  and  the  goods  are  sent 
on  to  their  destination,  the  proper  place  for  adjusting  the  general  average  is  the  port 
of  destination  of  the  goods,  in  cas-e  they  are  brought  thither  for  risk  and  account  of  the 
shipowner.  If,  however,  no  ship  can  be  chartered  at  the  port  of  refuge  or  in  a 
neighbouring  port,  then  the  voyage  ends  at  that  port,  and  the  adjustment  must  be 
made  there,  althougli  the  cargo  may  be  subsequently  carried  by  the  owner  of  it  to  its 
original  destination. 

{x)  As  to  the  contributory  value  of  the  ship,  the  law  of  Holland  seems  to  be  the  same 
as  that  which  has  been  stated  to  be  the  law  of  England.  Custom,  however,  is  in  so 
far  at  variance  with  the  law  that,  if  the  ship  has  been  valued  in  her  damaged  state  at 
the  port  of  refuge,  that  value  is  adopted  as  her  contributory  value,  adding  the  amount 
to  be  made  good,  and  deducting  posterior  damages.  This  custom  seems  to  be  based 
principally  upon  convenience,  as  a  second  valuation  is  thereby  avoided. 

(y)  When  freight  is  absolutely  prepaid,  its  share  of  general  average  is  payable,  as  in 
England,  by  the  charterer. 

Advances  on  freight  made  by  the  charterer  or  shipper,  and  insured  by  them  for 
captain's  account,  contribute  upon  the  same  principle,  and  the  share  of  general  average 
is  paid  by  the  underwriter  of  the  advance.  If  the  captain  is  charged  with  the  pre- 
mium, but  the  insurance  is  really  not  effected  by  the  charterer  or  the  shipper,  these 
must  pay  the  share  of  general  average  themselves. 


THE  LAW  OF  HOLLAND. 


585 


van  de  gagien  en  het  onderlioud 
van  het  scheepsvolk,  en 

Door  de  waarde  van  de  goede- 
ren,  welke  zich  ten  tijde  van  het 
voorvallen  der  schade  aan  boord, 
of  in  de  ligters  of  booten  hebben 
bevonden,  of  welke  voor  de  ramp 
uit  nood  zijn  geworpen  en  vergoed 
geworden ;  of  wel  tot  dekking  van 
avarij-kosten  hebben  moeten  wor- 
den  verkoopt. 

Gemunt  geld  draagt  in  de  ge- 
nieene  avarij  naar  den  koers  der 
plaats  waar  de  reis  eindigt. 

§  728.  Ue  ingeladene  goederen 
■worden  begroot  naar  derzelver 
"waarde  op  de  plaats  der  lossing, 
onder  korting  van  de  vracht,  in- 
komende  regten  en  kosten  der 
ontlading,  mitsgaders  der  bij- 
zondere  avarij,  gedurende  de  reis 
ten  laste  derzelve  gevallen. 

Dit  lijdt  uitzondering  in  de  vol- 
gende  gevallen: 

Wanneer  de  berekening  en  de 
verdeeling  opgemaakt  moeten  wor- 
den ter  plaatse  waar  de  schepen 
binnen  dit  land  zijn  vertrokken,  of 
hadden  moeten  vertrekken,  wordt 
de  prijs  der  ingeladene  goederen 
bepaald  naar  de  waarde  die  dezelve 
ten  tijde  der  inlading  hebben  ge- 
had,  met    de    onkosten,    tot    aan 


tion  of  the  wages  and  provisions  of 
the  crew  (z) ;  and 

By  the  value  of  the  cargo  which 
at  the  time  of  the  occurrence  of  the 
loss  was  on  board,  or  in  the  lighters 
or  boats,  or  which  before  the  dis- 
aster had  in  case  of  peril  been 
thrown  overboard  and  have  been 
made  good;  or  which  may  have 
been   sold    to   cover   average    ex- 


average 


penses . 

Specie  contributes  to  the  general 
average  at  the  rate  of  exchange  at 
the  place  where  the  voyage  ends. 

§  728.  The  goods  on  board  are 
to  be  valued  according  to  their 
price  at  the  place  of  discharge, 
deducting  the  freight,  import  dues, 
and  expenses  of  unloading,  to- 
gether with  any  particular  average 
come  to  their  charge  during  the 
voyage. 

This  is  subject  to  the  following 
exceptions: 

When  the  adjustment  and  ap- 
portionment are  to  be  made  up  at 
the  place  within  this  country  from 
which  the  ship  sets  sail,  or  was 
to  have  set  sail,  the  value  of  the 
goods  on  board  is  to  be  taken  at 
their  worth  at  the  time  of  ship- 
ment, with  the  expenses  till  on 
board,  not  including  the  premium 


[z)  The  deducting  of  provisions  is  plainly  wrong  on  principle,  but  it  is  the  rule.  It 
is  to  be  remarked  that,  as  the  Dutch  law  with  regard  to  the  payment  of  the  crew's 
wages  is  the  same  as  our  own  common  law  previously  to  the  passing  of  the  Merchant 
Shipping  Act,  that  is  tu  say,  as  the  crew  forfeit  their  wages  if  the  ship  be  totally 
wrecked,  it  is  right  in  principle,  as  it  is  in  practice,  to  deduct  from  the  contributory 
value  of  the  freight  the  entire  amount  of  wages,  not  merely  reckoning  from  the  time 
of  the  general  average  act,  but  from  the  commencement  of  the  voyage,  or  from  the  last 
preceding  earning  of  freight ;  and  the  same  rule  ought  to  be  followed  in  English 
adjustments  of  general  average  on  Dutch  ships. 


686 


APPENDIX  L. 


boord,  de  premie  van  assurantie 
daar  niet  bijgerekend;  eu  iu  geval 
de  goederen  be^thadig-d  zijn,  naar 
derzelver  wezeiilijke  waarde. 

Wanneer,  buiten's  lands,  de  reis 
geheel  wordt  gestaakt,  of  de  goe- 
deren worden  verkocht,  en  de 
avarij  te  dier  plaatse  niet  heeft 
kunnen  worden  opgeniaakt,  alsdan 
wordt  de  prijs,  dien  de  goederen 
onder  weg  waardig  zijn,  of  ter 
plaatse  der  verkooping  zuiver 
hebben  opgebragt,  als  het  dragend 
kapitaal  berekend. 

§  729.  De  over  boord  geworpene 
goederen  worden  gewaardeerd  vol- 
gens  den  marktprijs  van  de  plaats 
der  ontlading  van  het  scliip,  na 
aftrek  der  vraeht,  inkomende  reg- 
ten  en  ordinaire  onkosten;  der- 
zelver aard  en  gesteldlieid  Avorden 
opgemaakt  uit  cognoseementen, 
facturen,  en  andere  bewijzen. 


of  insurance;  and,  in  case  the 
goods  are  damaged,  their  actual 
value . 

AMien,  abroad  from  this  coun- 
try, the  voyage  is  wholly  broken 
up,  or  the  goods  have  been  sold, 
and  the  average  cannot  be  made 
up  at  that  place,  then  the  sum 
which  the  goods  would  be  worth 
under  way,  or  that  wliich  they 
have  fetched  at  the  sale,  must  be 
taken  as  their  contributing  capi- 
tal (a). 

§  729.  The  goods  thrown  over- 
board must  be  valued  according  to 
the  market  price  at  the  ship's 
port  of  discharge,  deducting  the 
freight  (b),  import  duties,  and 
ordinary  expenses;  their  quality 
and  condition  is  to  be  determined 
by  bills  of  lading,  invoices,  and 
other  proofs  (e). 


{a)  When  the  voyage  is  broken  up  at  some  intermediate  place,  the  values  at  the 
place  where  it  is  broken  up  form  the  basis  of  the  adjustment.  If,  however,  the 
captain,  as  is  his  duty,  hires  another  ship,  and  sends  the  cargo  to  its  desf.iuatiou,  that 
is  not  a  breaking  up  of  the  voyage,  and  the  basis  of  adjvistment  must  in  that  case  be 
the  value  of  the  cargo  at  the  port  of  destination. 

(i)  "The  legal  rule  that  from  the  market  price  of  the  jettisoned  goods  the  full 
amount  of  freight  must  ahcays  be  deducted,  and  only  the  balance  be  compeusated  to 
the  owner  of  the  goods  sacrificed,  I  regard,  looking-  at  ^  481  of  the  Dutch  Code,  as 
mistaken.  According  to  §  4S!  (here  incidentally  deviating  from  the  German 
Code),  freight  of  goods  jettisoned  for  the  common  safety  is  to  be  paid  in  full  to  the 
shipowner,  and  by  the  shipper,  for  that  whole  section  of  the  Dutch  Code  is  treating 
only  '  of  the  rights  and  duties  of  the  shipowner  and  the  shipper.'  By  the  sacrifice  of 
the  goods,  th(;ir  market  price  at  the  place  of  destination,  including  freight,  is  lost  by 
the  cargo-owners,  and  so  the  sum  totul  of  these  ought  not  to  be  diminished.  A  deduc- 
tion of  freight  is  only  justifiable  then,  when  as  for  example  the  case  is  in  the  German 
Code,  no  freight  is  to  be  paid  on  goods  sacrificed,  so  that  the  shipper  is  spared  freight 
by  reason  of  the  sacrifice." — (Ul.  p.  109.) 

(c)  When  the  goods  jettisoned  either  were  damaged  at  the  time,  or  must  have 
become  damaged  had  they  remained  on  shipboard,  the  damaged  value  only  is  allowed, 
as  in  England.  The  principle  is,  that  he  whose  goods  are  jettisoned  never  may  be  a 
gainer,  but  must  be  brought  into  the  same  position  as  if  his  goods  had  remained  on 
board. 


THE  LAW  OF  HOLLAND. 


587 


§  730.  Indieu  de  aard  of  lioe- 
danigheid  der  koopmanschappen 
bij  het  cog-noscement  verkeerdelijk 
is  opgegeveii,  en  deze  eeno  grooterc 
waarde  liebbeii,  wordt  de  scliade 
over  dezelve  omgeslagen  oj)  den 
voet  van  de  wezenlijke  waarde, 
indien  zij  behoudenzijn  gebleven. 

Doch  zoo  zij  door  vs^erping  ver- 
loren  zijn  geraakr,  wordt  de  scliade 
vergoed  volgens  de  hoedanigheid 
bij  het  cognoscement  opgegeveu. 

Indien  de  opgegevene  koopman- 
schappen  van  eene  minder e  hoe- 
danigheid zijn  dan  bij  het  cogno- 
scement is  aangewezeii,  dragen  zij 
in  de  schade  volgens  de  hoedanig- 
heid bij  het  cognoscement  op- 
gegeven,  indien  zij  belioudon  zijn 
gebleven. 

Zij  worden  betaald  op  den  voet 
van  hare  wezenlijke  waarde,  in- 
dien zij  over  boord  geworpen  zijn. 

§  731.  De  mondbehoeften,  de 
kleederen  van  het  scheepsvolk  en 
de  dagelijksche  kleederen  der  pas- 
sagiers,  gelijk  mede  de  voor  de 
verdediging  van  het  schip  ver- 
eischte  ammunitie,  dragen  niet  in 
de  schaden  van  het  werpen  der  goe- 
dereu.  De  waarde  van  al  hetgene 
van  dien  aard  over  boord  geworpen 
is,  wordt  vergoed  bij  omslag  over 
alle  andere  ffoederen. 


§  730.  If  the  kind  or  quality  of 
the  merchandise  has  been  inac- 
eiu'ately  described  in  the  bill  of 
lading,  and  they  are  more  valu- 
able, the  loss  is  assessed  thereon 
at  the  rate  of  the  real  value,  if  the 
goods  have  been  saved. 

If,  however,  they  have  perished 
by  jettison,  the  loss  is  made  good 
according  to  the  quality  mentioned 
in  the  bill  of  lading. 

If  the  goods  mentioned  are  of  a 
lower  quality  than  is  stated  in  the 
bill  of  lading,  they  contribute  to 
the  loss  according  to  the  quality 
mentioned  in  the  bill  of  lading,  if 
they  have  been  saved. 


Thev  are  made  good  at  the  rate 
of  their  real  value,  if  they  have 
been  jettisoned. 

§  731.  Provisions,  wearing  ap- 
parel of  the  crew,  and  ordinary 
wearing  apparel  of  the  passengers, 
likewise  ammunition  provided  for 
the  defence  of  the  ship,  do  not 
contribute  towards  the  loss  by 
jettison  (d).  The  value  of  all  such 
articles,  if  themselves  jettisoned,  is 
to  be  made  good  by  assessment 
over  all  the  goods. 


§   732.   De    goederen,    waarvan  i       §  732.  The  goods  of  which  no 

geen  cognoscement  van  den  schip-  bill  of  lading  of  the  captain  exists, 

per  voorhanden  is,  of  die  niet  op  or  which  are  not  mentioned  in  the 

het    manifest    der    lading    staan,  manifest,  are  not  compensated  if 


{d)  "  Although  jettison  only  is  spoken  of  iu  §  731,  the  rule  holds  good  in   all  othci- 
cases  of  general  average  sacrifices."  —  (Ul.  p.  111.) 


588 


APPENDIX  L. 


worden  niet  betaald,  indien  zij 
over  boord  geworpen  zijn;  zij 
dragen  in  de  scliade,  zoo  zij  zijn 
behouden  gebleven. 

§  733.  De  goederen,  op  den  over- 
loop  van  het  schip  geladen,  dragen 
mede  in  de  schade,  indien  zij  be- 
houden zijn  gebleven. 

Indien  de  schipper  de  goederen, 
buiten  kennis  of  toestemming  van 
den  inlader,  op  den  overloop  heeft 
geplaatst  en  dezelve  zijn  geworpen 
of  door  de  werping  beschadigd,  is 
de  inlader  tot  den  eisch  van  den 
omslag  geregtigd,  behoudens  het 
verhaal  van  alle  belanghebbenden 
op  het  schip  en  den  schipper. 


they  have  been  thrown  overboard ; 
they  participate  in  the  loss  if  they 
are  saved. 


§  733.  Goods  laden  on  the  deck 
of  the  ship  contribute  to  the 
average,  if  they  remain  in  safety. 

In  case  the  captain  without  the 
knowledge  or  concurrence  of  the 
shipper,  has  placed  them  on  deck, 
and  these  goods  have  been  thrown 
ovetboard  or  damaged  through  the 
jettison  (e),  the  shipper  is  entitled 
to  recover  his  loss  in  the  general 
average;  without  prejudice  to  the 
rights  of  all  parties  concerned 
against  the  ship  and  master  (/) . 


{e)  "  Jeltison  of  unauthorized  deck  carffo. — If  the  captain  has  .stowed  goods  on  deck 
•withoiit  the  shipper's  permission,  and  has  to  throw  them  overboard  to  save  ship  and 
cargo  from  a  common  danger,  the  fact  that  the  shipper  is  to  be  compensated  in  general 
average  for  the  damage  his  goods  have  thereby  suffered  does  not  annul  the  liability  of 
the  captain  to  be  sued  on  account  of  the  deck  cargo.  The  rule  in  §  733  is  rather  to 
be  regarded  as  a  special  provi.sion  deviating  from  general  sea  law  to  protect  the 
shippers  concerned,  which  by  no  means  only  reserves  the  right  of  the  other  cargo 
owners  to  have  recoui'se  against  the  captain,  but  also  justifies  the  owner  of  the  deck 
cargo  himself  to  take  measures.  Under  such  circumstances  the  captain  is  not  allowed 
to  argue  that  he  was  compelled  to  the  jettison  by  ris  major.  (Mag.  v.  H.,  xiv.  p.  157.)" 
—  (Ul.  p.  112.) 

(/)  This  clearly  implies  that  the  shipment  on  deck  is  regarded  as  improper.  Pre- 
sumably, if  goods  are  so  carried  with  the  consent  of  the  shipper,  and  are  jettisoned,  the 
loss  would  not  be  treated  as  general  average  ;  how  the  case  would  stand  as  between 
the  .shipper  and  shipowner  is  not  defined.  It  appears  that  the  shipper  whose  goods 
have  been  placed  on  deck  without  his  knowledge,  has  a  double  remedy  in  case  of 
jettison  ;  he  may  claim  as  general  average,  or  he  may  claim  direct  from  the  shipowner. 
It  is  to  be  presumed  that  this  clause  only  refers  to  claims  on  the  part  of  the  ship- 
owner. This  may  be  inferred  from  §  733,  where  it  is  laid  down  that  if  the  master, 
without  the  knowledge  of  the  shipper,  improperly  loads  certain  goods  on  the  deck,  and 
these  goods  are  afterwards  jettisoned,  the  t-hipper  may  recover  his  loss  as  general 
average,  leaving  all  parties  concerned  a  right  of  ultimate  recovery  from  the  ship  or 
master.  Here,  under  the  form  of  a  particular  instance,  we  have  the  principle  laid 
down  in  the  German  law — that  the  party  in  fault  not  only  is  excluded  from  the 
benefit  of  contribution  towards  his  own  loss,  but  must  ultimately  make  good  to  each 
other  contributor  that  which  he  has  been  obliged  to  contribute  by  reason  of  his  fault ; 
the  contribution  itself,  as  amongst  the  innocent  parties,  remaining  intact.     Any  other 


THE  LAW  OF  HOLLAND. 


589 


§  734.  Indien  niettegenstaande 
het  werpen  van  goederen  of  het 
kappen  van  scheepstuigen,  het 
schip  vergaat,  heeft  geen  onislag 
tot  vergoeding  plaats. 

De  behouden  geblevene  of  ge- 
borgene  goederen  zijn  niet  ge- 
houden  tot  betaling  of  tot  vergoed- 
ing van  geledene  schade  van  de 
voorwerpen,  die  geworpeu,  bescha- 
digd  of  gekapt  zijn. 


§  735.  Indien  het  schip  door  het 
werpen  of  kappen  behouden  blijft, 
en  naderhand  bij  het  vervolgen 
zijner  re  is  vergaat,  en  alsdan  goe- 
deren geborgen  worden,  dragen 
alleen  de  geborgene  goederen  in  de 
werping,  naar  de  waarde  welke  zij 
alsdan  hebben,  na  aftrek  van  de 
bergloonen. 


§  734.  In  case  that,  notwith- 
standing the  jettison  of  the  goods 
or  the  cutting  away  of  the  ship's 
tackle,  the  ship  is  lost,  no  contri- 
bution shall  take  place. 

The  goods  which  escape,  or  are 
salved,  are  not  liable  to  contribute 
towards  making  good  the  loss 
suffered  by  the  articles  thrown 
overboard,  damaged,  or  cut  away. 


§  735.  In  case  the  ship  is  pre- 
served by  means  of  the  jettison  or 
cutting  away,  and  afterwards,  in 
prosecuting  her  voyage,  is  lost, 
and  goods  are  eventually  saved,  the 
saved  goods  (g)  alone  contribute  to 
the  jettison,  according  to  the  value 
which  they  then  have,  after  de- 
duction of  the  cost  of  salvage  Qi). 


rule  must  occasionally  work  an  injustice — e.g.,  in  case  of  jettison  of  cargo  from  an 
unseaworthy  ship,  there  clearly  ought  to  be  contribution  as  amongst  the  owners  of 
cargo,  suppnsing  the  t^hipowner  to  be  insolvent. 

With  regard  to  the  jettison  of  deck-load  to  lighten  a  ship  in  case  of  stranding,  Dr. 
Rahusen  says  that  there  has  been  on  this  point  no  legal  decision  in  the  Dutch  Courts, 
and  it  is  hardly  possible  to  say  what  the  Courts  would  decide  ;  but  that  he  himself  is 
accustomed  to  allow  such  jettison  as  general  average.  He  cannot,  however,  say  that 
there  exists  any  decided  custom  on  this  point. 

{g)  Goods  sold  at  a  port  of  refuge  on  account  of  damage  do  not  contribute  to  any 
subsequent  average  disaster. 

(A)  "  Cargo  nold  in  a  port  of  refuge  has  not  to  bear  the  general  average  alone  if  ship  and 
cargo  are  lost  later. — The  ship  Maria  Agnes,  on  her  voyage  from  Java  to  Holland,  sus- 
tained such  damages  (in  part  general  average)  that  she  had  to  put  into  Simon's  Bay  as 
a  port  of  refuge.  Part  of  the  cargo  of  coffee  there  showed  signs  of  damage,  and  was 
therefore  sold  by  the  captain,  who  now  did  not  raise  money  for  the  repiirs  of  the  ship 
on  the  credit  of  the  shipowner,  but  met  the  expenses  of  repairs  by  the  proceeds  of  the 
sale.  On  the  further  voyage  both  ship  and  cargo  were  totally  lost,  and  the  adjusters 
appealed  to  §  735  as  a  ground  for  bringing  the  proceeds  of  the  cargo  sold  at  Simon's 
Bay,  being  a  saved  object,  into  general  average.  The  tribunal  resorted  to  for  the  final 
decision  of  the  dispute  condemned  the  shipowner  to  reimburse  the  proceeds  of  the  sale 
in  Simon's  Town,  deducting  the  full  freight  falling  on  that  part  of  the  cargo,  but 
decided,  too,  that  there  was  no  case  for  general  average.  The  sale  of  the  damajfed 
cargo  had  taken  place  in  the  port  of  refuge,  under  the  management  of  the  captain 
acting  as  negotiorum  geslor  for  the  owners  of  the  cargo.     Consequently  the  captain  is 


590 


APPENDIX  L. 


§  7.36.  Indien  liet  scliip  en  de 
lading,  door  kappen  of  andere 
schade  aan  het  schip  toegebracht, 
behouden  blijven,  doch  de  goede- 
ren  naderhand  vergaan  of  geroofd 
worden,  heeft  de  schipper  geene 
aanspraak  op  de  eigenaars,  in- 
laders  of  geconsigneerden  dier 
goederen,  om  in  den  omslag  dier 
kapping  of  schade  te  dragen. 

§  737.  Indien  de  goederen  door 
schuld  of  toedoen  van  den  inlader 
of  geconsigneerde  verloren  gaan, 
dragen  zij  evenwel  in  de  gemeene 
avari  j . 

§  738.  In  geen  geval,  behoeft  de 
eigenaar  eener  lading  in  gemeene 
avari  j  meer  te  dragen,  dan  de 
waarde  der  goederen,  zoo  als  die 
bij  derzelver  aankonist  Avaardig 
zijn;  onverminderd  zoodanige  kos- 
ien  als,  na  het  vergaan  van  het 
schip  of  de  opbrenging  en  aan- 
houding  der  goederen,  door  den 
schipper  te  goeder  troiiw,  zelfs 
zonder  last,  zijn  gedaan,  om  van 
het  vergane  iets  te  redden,  of  de 
opgebragte  goederen  te  reclame- 
ren,  al  ware  zulks  zonder  goed 
gevolg. 

§  739.  Indien,  ua  den  gedaneii 
omslag,    de    geworpene    goederen 


§  736.  In  case  the  ship  and 
cargo  are  preserved  by  the  cutting 
away  or  other  hurt  done  to  the 
ship,  but  the  goods  afterwards  are 
lost  or  stolen,  the  captain  has  no 
claim  against  the  owners,  shippers, 
or  consignees  of  such  goods  for 
contribution  towards  such  cutting 
away  or  hurt. 


§  737.  In  case  the  goods  are  lost 
through  the  fault  or  act  of  the 
shipper  or  consignee,  they  shall 
still  contribute  to  the  general 
average . 

§  738.  In  no  case  must  the 
owner  of  goods  bear  in  general 
average  a  larger  amount  than  the 
value  of  his  goods  in  the  condition 
in  which  they  arrive;  excepting 
such  expenses  as,  after  the  wreck 
of  the  ship,  or  captvu-e  or  detention 
of  the  cargo,  are  incurred  by  the 
captain  in  good  faith,  even  without 
orders,  in  order  to  save  something 
from  the  wreck,  or  to  reclaim  the 
captured  goods,  although  Ihe  at- 
tempt may  have  been  ineffectual. 


§  739.  If  after  the  assessment, 
the  goods  thrown  overboard  have 


bound  to  refund  the  proceeds,  and  cannot  maintain  that  it  belonged  to  the  value  of  the 
lost  ship  and  went  down  with  it.  Also  the  abandonment  of  ship  and  freight  in  thi.s 
case  was  not  permissible,  but  the  responsibility  of  the  owner  was  a  personal  one.  As 
to  the  applicability  of  §  735,  it  cannot  be  concluded  from  it  that— because  ffoods  saved 
have  to  contribute  to  a  general  average,  even  if  the  vessel  is  totally  lost  after  those 
measures  of  safety  have  been  taken — that  goods  also  which  have  been  sold  in  a  port 
of  refuge  on  account  of  particular  damage  shoiild  alone  contribute  to  the  general 
average  in  case  of  the  loss  of  ship  and  cargo.     (Mag.  v.  H..  x.  p.  5.)" — (Ul.  p.  113.) 


THE  LAW  OF  HOLLAND. 


591 


door  de  eigenaars  ziju  terug  beko- 
ruen,  zijn  zij  geliouden  hetgeen  zij 
voor  dezelve  in  de  verdeeling  ont- 
varigen  hebben,  aan  den  schipper 
en  de  belanghebbenden  bij  de 
lading  in  te  brengen,  onder  aftrek 
der  schade,  onkosten  en  berg- 
loonen. 

In  dat  geval,  wordt  de  gcmelde 
inbreug  door  het  sebip  en  de  be- 
langhebbenden in  dezelfde  even- 
rediglieid  genoten,  als  zij  in  de 
schade  der  werping  hebben  ge- 
dragen . 

§  740.  Indien  de  eigeuaar  der 
geworpene  goederen  dezelve  terug 
bekoJiit,  zonder  eenige  vergoeding 
te  vordereu,  draagt  hij,  in  geen 
geval,  in  de  gemeene  avarij,  na 
de  werping  aan  de  behouden  ge- 
blevene  goederen  overgekomen. 


BOEK  11.     TIT.  V. 

Van  Bevra(  httng. 

§  478.  De  bevrachter  of  iulader 
is,  in  geval  de  schipper  genood- 
zaakt  is  gedurende  de  reis  het 
schip  te  lateu  vertimmeren,  ge- 
houden  de  vertininiering  af  te 
wachten,  of  (des  verkiezende)  de 
lading,  tegen  voldoening  van  de 
geheele  vracht  en  de  verschuldigde 
avarij -grosse,  en  onder  de  be- 
palingen  bij  Artikel  511  voor- 
geschreven,   naar  zich   ie  nonieu. 


beeji  recovered  by  the  owners, 
these  are  bound  to  return  to  the 
master,  and  the  parties  concerned 
in  the  cargo,  what  has  been  as- 
signed to  them  for  the  same  by 
adjustment,  under  deduction  of 
damage,  charges,  and  salvage. 

In  such  case  the  ship  and  parties 
concerned  participate  in  what  is 
thus  brought  in,  in  the  same  pro- 
portion in  which  they  have  contri- 
buted for  the  loss  by  the  jettison. 


§  740.  If  the  owner  of  the  goods 
thrown  overboard  recovers  the 
same  without  claiming  any  indem- 
nity, he  in  no  ease  contributes  to 
general  average  sustained  after 
the  jettison  by  the  goods  which 
have  remained  safe. 


BOOK  II.     TIT.  V. 

Of  AffreightiMent. 

§■  478.  In  case  the  captain  is 
obliged,  during  the  voyage,  to  have 
his  ship  repaired,  the  freighter  or 
shipper  is  bound  to  await  the 
repairing,  or  (at  his  election)  to 
take  away  his  goods  on  payment  of 
the  fidl  freight  and  the  general 
average  that  is  due,  and  on  com- 
plying with  the  conditions  of 
Art.  511  of  this  Code(i). 


Hij  is,  gedurende  den  tijd  der  During  the  time  of  the  repairing 


(t)  That  is,  he  must  likewise  make  good  any  expense  vrhich  his  withdrawal  of  his 
property  may  occasion,  such  as  the  breaking  out  and  restoring  of  other  portions  of  the 
cargo  to  get  at  them. 


592 


APPENDIX  L. 


vertinimering,  geene  vracht  ver- 
schuldigd,  indien  het  schip  bij  de 
maand  vervracht  is,  noch  vermeer- 
dering  van  vracht,  indien  de  ver- 
vrachting  voor  de  reis  geschied  is. 

Wanneer  het  schip  niet  mogt 
kunnen  worden  vertimmerd,  is  de 
schipper  gehouden,  voor  zijne  re- 
kening  en  zonder  verhooging  van 
vracht  te  mogen  eischen,  een  ander 
schip  of  andere  schepen  te  huren, 
cm  de  lading  naar  de  besteinming'S- 
plaats  te  vervoeren. 

Indien  de  schipper  geen  ander 
schip  of  schepen,  op  te  plaats  of 
nabij  gelegene  plaats,  heeft  kun- 
nen bekomen,  is  hem  de  vracht 
niet  verder  verschuldigd  dan  in 
evenredigheid  van  de  reeds  af- 
gelegde  reis. 

In  dit  laatste  geval  blijft  de  zorg 
voor  de  voordere  vervoering  der 
goederen  aau  elk  der  inladers 
overgelaten;  onverminderdde  ver- 
pligtiug  van  den  schipper,  om  hen 
niet  alleen  van  den  staat  der  zaken 
te  doen  kennis  dragen,  maar  ook 
om  alle  tusschen  tijds  vereischt 
wordende  maarregelen,  tot  behoud 
der  lading,  in  het  werk  te  steUen. 

Alles,  ten  zij  door  partijen 
anders  mogt  zijn  bedongen. 

§  480.  Indien  de  schipper  zich, 
naar  aan^e'ding  van  Art.  372,  in  de 
noodzakelijkheid  heeft  bevonden, 
goederen  te  verkoopen,  is  de  vracht 
van  die  goederen  verschuldigd,  bij 
behoudene  aankomst  van  het  schip, 


no  freight  is  due  in  case  the  ship  is 
freighted  by  the  month,  nor  any 
augmentation  of  freight  in  case  it 

is  by  the  voyage. 

If  the  ship  cannot  be  repaired, 
the  captain  is  bound,  on  his  own 
account  and  without  having  any 
claim  for  enhancement  of  freight, 
to  hire  another  ship  or  ships,  in 
order  to  forward  the  cargo  to  its 
place   of  destination. 

In  case  the  captain  is  unable  to 
procure  another  ship  or  ships  on 
the  spot  or  in  any  place  in  the 
neighbourhood,  he  is  entitled  to  no 
furtlier  freight  than  in  proportion 
to  the  distance  completed. 

In  the  latter  case,  the  respon- 
sibility for  the  forwarding  of  the 
goods  is  transferred  to  each  of  the 
shippers;  saving  the  duty  of  the 
captain,  not  only  to  inform  them 
of  the  state  of  affairs,  but  also  to 
direct  the  carrying  out  of  all  such 
measures  as  may  in  the  meantime 
be  requisite  for  the  safety  of  the 
goods. 

All  this,  unless  the  parties  have 
otherwise  stipulated. 

§  480.  In  case  the  captain,  acting 
in  conformity  with  Art.  372  (k),  is 
under  the  necessity  of  selling 
goods,  the  freight  due  in  respect 
of  such  goods  is,  in  the  event  of 
the  ship's  safe  arrival,  the  whole, 


{k)  Art.  .372  gives  directions  with  reorard  to  the  sale  of  cargo,  in  case  of  need,  at  a 
port  of  refuge,  in  order  to  raise  funds  for  necessaries  to  enable  the  ship  to  complete  the 
voyage. 


THE  LAW  OF  HOLLAND. 


593 


geheel,  en  bij  verongelukking-  van 
hetzelve,  naar  evenredigheid  der 
afgelegde  reis. 

> 

§  481.  De  vraeht  is  mede  ver- 
schuldigd  van  de  goederen,  die  tot 
algemeen  behoud  over  boord  zijn 
geworpen,  in  zoo  verre  de  ver- 
deeling  tot  liet  dragen  der  echade, 
door  de  warping  veroorzaakt,  vol- 
gens  dit  Wetboek  plaats  moet 
hebben. 

§  482.  Van  goederen  door  schip- 
breuk,  stranding  of  door  andere 
overmagt  vergaan,  of  door  zee- 
roovers  of  vijanden  genomen,  is 
geen  vraeht  verschuldigd. 

De  bevrachter  kan  zelfs  de 
teruggave  vorderen  van  hetgeen 
op  rekening  is  betaald,  indieu  het 
legended  niet  is  bedongen . 


§  483.  Schip  en  lading  gerant- 
soeneerd  of  vrijgekocht,  of   goe- 


and  in  the  event  of  her  loss,  a 
proportion  according  to  the  dis- 
tance run  (I). 

§  481.  Freight  is  also  due  for 
the  goods  which  have  been  thrown 
overboard  for  the  general  safety, 
so  far  as  the  contribution  for  the 
loss  caused  by  the  jettison  has, 
according  to  the  rules  of  thia 
Code,  to  be  made. 


§  482.  For  goods  lost  through 
sliipwreck,  stranding,  or  other 
disaster,  or  taken  by  pirates  or 
enemies,  no  freight  is  due. 

The  shipper  is,  on  the  contrary^ 
entitled  to  a  return  of  whatever 
freight  has  been  paid  in  advance, 
unless  it  has  been  stipulated  ta 
the  contrary. 

§  483.  If  ship  and  cargo  are 
recaptured  and  ransomed,  or  goods 


{!)  If  the  ship  is  able  to  carry  the  goods,  hut  if  part  of  the  cargo,  being  sea- 
damaged,  is  necessarily  sold  at  a  port  of  refuge  by  the  captain's  orders,  the  whole 
freight  is  due  on  such  portion.  This  rule  is  based  on  the  following  principles :  First, 
the  captain,  acting  as  agent  for  the  owner  of  the  cargo,  and  acting  on  his  behalf  by 
selling  a  part  of  the  cargo,  thereby  realizing  what  may  be  earned,  and  avoiding  a 
total  loss  of  that  part  of  the  cargo,  must  never  be  himself  a  loser  from  faithfully 
performing  his  duty.  Secondly,  it  is  highly  desirable  for  the  cargo  in  general  that 
any  sea-damaged  portion  should  be  left  behind  in  the  port  of  refuge,  and  the  captain 
ought  not  to  be  brought  into  a  struggle  between  his  conscience  and  his  pocket. 

If,  however,  the  fuU  cargo  is  sold  at  the  port  of  refuge  by  reason  of  its  being  sea- 
damaged,  the  captain  would  only  have  a  right  to  pro  rata  freight,  the  voyage  being 
broken  up,  and  the  captain  remaining  at  liberty  to  make  a  new  charter  and  to  sail 
whither  he  likes. 

Custom,  however,  has  introduced  in  both  these  cases  this  mitigation — that,  if  cargo 
is  sold  in  the  port  of  refuge,  the  owner  never  is  liable  for  more  freight  (be  it  full 
freight  or  pro  raid  freight)  than  the  proceeds  of  the  cargo  sold.  It  is,  howevf  r,  more 
or  less  questionable  whether  this  custom  would  be  maintained  in  Court,  if  the  captain 
brought  an  action  against  the  shipper  for  the  balance  of  freight.  This  mitigation  does 
not  apply  to  the  case  when  the  goods  arrive  at  the  port  of  destination. 


QQ 


594 


APPENDIX  L. 


deren,  na  schipbreulc,  geborgen 
zijnde,  is,  voor  zoo  verre  de  reis 
niet  kan  Tvorden  ten  einde  gebragt, 
de  vraclit  verschuldigd  tot  de 
plaats,  waar  het  schip  genomen  of 
de  schipbreuk  geleden  is,  in  even- 
redigheid  der  bedongene  vracht. 

De  vrijgekoehte  of  gerantsoe- 
neerde  goederen,  ter  plaatse  der 
bestemming  door  den  schipper 
bezorgd  Avordende,  heeft  de  ver- 
vrachter  of  de  schipper  regt  tot  de 
geheele  vracht. 

In  de  gevallen  bij  het  eerste  en 
tweede  lid  van  dit  artikel  voorzien, 
draagt  de  vervrachter  of  de  schip- 
per in  den  losprijs  of  in  het  ber- 
gloon,  bij  wijze  van  avarij-grosse. 


§  484.  Van  goederen,  tot  de  lad- 
ing van  een  schip  behoord  heb- 
bende,  die,  buiten  eenig  toedoen 
van  den  schipper,  het  zij  in  zee 
of  laugs  stranden,  worden  opge- 
vischt  en  geborgen,  en  vervolgens 
aan  de  belanghebbenden  uitgele- 
verd,  is  geene  vracht  verschuldigd. 

§  487.  De  vervrachter  of  schip- 
per verraag,  voor  de  vracht,  on- 
kosten  en  avarij-grosse,  de  goe- 
deren niet  aan  boord  te  houden. 

Hij  heeft  regt  om  den  opslag  en 
de  bewaring  onder  eenen  derde  te 
vorderen,  tot  dat  de  vracht,  on- 
kosten  en  avarij-grosse  zijn 
voldaan,   en   indien   de    goederen 


after  shipwreck  have  been  saved, 
and  if  the  voyage  cannot  be  com- 
pleted, freight  is  due  to  the  place 
where  the  ship  was  captured  or 
where  the  shipwreck  occurred,  in 
proportion  to  the  freight  stipu- 
lated for. 

If  the  salved  or  ransomed  goods 
are  forwarded  by  the  captain  to 
the  place  of  destination,  the  ship- 
owner or  captain  is  entitled  to 
the  full  freight. 

In  the  cases  provided  for  by  the 
first  and  second  sections  of  this 
article,  the  shipowner  or  captain 
must  bear  his  share  of  the  ransom 
or  salvage,  in  the  way  of  general 
average . 

§  484.  For  goods  forming  part 
of  a  ship's  cargo,  which,  without 
any  act  on  the  part  of  the  captain, 
have  been  fished  up  or  saved  at 
sea  or  along  the  coast,  and  after- 
wards delivered  to  the  proprietors, 
no  freight  is  due  (w). 


§  487.  The  shipowner  or  captain 
has  no  right  to  detain  the  goods  on 
shipboard  as  secui'ity  for  freight, 
expenses,  and  general  average. 

He  has  the  right  to  have  the 
goods  retained  in  the  hands  of  a 
third  party  until  the  freight,  ex- 
penses, and  general  average  are 
satisfied,  and,  in  case  the  goods  are 


(m)  When  goods  arrive  at  their  destination  so  damaged  as  not  to  be  worth  the 
freight,  full  freight  is  due.  As  to  liquids,  however,  empty  or  nearly  empty  casks  may 
be  abandoned  for  the  freight,  as  in  France  and  Belgium. 


THE  LAW  OF  HOLLAND.  595 

bederfelijk  ziju,  kan  hij  derzelver  perishable,  he  may  lequirc  their 

verkoop  vorderen.  sale. 

Indien    de     avarij-grosse     niet  In    case    the    general    average 

spoedig  kan  begroot  werden,  heeft  cannot  immediately   be   adjusted, 

hij  regt  om  te  vorderen,  dat  cene  j  he  has  the  right  to  demand  that  a 

billijke  som,  ter  bepaling  van  den  '  reasonable  sum,  to  be  determined 

regter,  daarvoor   inmiddels   onder  i  by  the  judge,  shall  in  the  mean- 

geregtelijke      bewaring      gosteld  time     be    placed    luider    judicial 

worde.  custody. 


Dr.  Ralmsen  has  supplied  particulars  of  several  decisions  in  Holland 
on  the  construction  of  the  York-Antwerp  Rules,  1890.  Five  of  these 
decisions  relate  to  Rule  VII.,  which  provides  that  "damage  caused 
to  machinery  and  boilers  of  a  ship  Avhich  is  ashore  and  in  a  position 
of  peril,  in  endeavouring  to  refloat,  shall  be  allowed  in  general  average, 
when  shown  to  have  arisen  from  an  actual  intention  to  float  the  ship 
for  the  common  safety  at  the  risk  of  such  damage." 

The  first  case  is  The  Ethelaida  {n),  decided  by  the  Permanent  Com- 
mittee of  Arbitration  in  Amsterdam.  The  Committee  held  that  there 
was  no  proof  that  the  steamer  was  in  a  position  of  peril,  and  that  it 
did  not  appear  that  the  captain  actually  intended  to  float  the  sliip  for 
the  common  safety  at  the  risk  of  damage  to  the  engines,  at  the  moment 
when  he  tried  to  float  the  ship  by  forcing  the  engines.  The  decision 
is  one  of  fact;  but  Dr.  Rahusen  observes:  "When  does  an  actual  in- 
tention to  float  the  ship  for  the  common  safety,  at  the  risk  of  such 
damage,  appear?  I  should  say  that  the  proof  of  the  captain  being- 
aware  of  the  possible  results  is  the  fact  of  his  endeavouring  to  float  the 
steamer  by  Avorking  the  engines.  Then  is  a  formal  declaration  by  tho 
captain,  that  he  is  aware  of  the  risk,  necessary  before  the  working  of 
the  engines?  " 

The  second  case  is  The  Manchester  {o).  The  ship  stranded  in  the 
Dardanelles  in  avoiding  a  collision  with  another  vessel.  The  Court  at 
Rotterdam  held  that  the  "  position  of  peril  "  must  be  an  immediate 
and  threatening  peril  for  ship  and  cargo.  Tho  Court  then  stated  tho 
following  facts:  i^l)  That  the  captain  tried  to  refloat  the  steamer  by 
using  his  own  resources;  (2)  That  he  succeeded;  and  (3)  That  he  did 
not  require  outside  assistance;  and  inferred  from  these  three  facts  that 
there  had  been  no  immediate  and  threatening  danger.  This  judgment 
was  confirmed  by  the  Court  of  Appeal  at  the  Hag-ue  (p),  which  added 


(«)  Weekblad  van  het  Recht,  No.  6477. 
(o)  Ibid.,  No.  718.5, 
(p)  Ibid.,  No.  7244. 

qq2 


596  APPENDIX  L. 

to  the  reasons  of  the  Court  below  the  curious  reason  that  it  did  not 
appear  from  the  documents  before  the  Court  that  the  captain  had  the 
intention  to  damage  his  engines.  "  I  consider  both  decisions  wrong," 
says  Dr.  Rahusen,  "the  former  because  the  Rule  does  not  require  an 
immediate  and  threatening  peril,  and  the  latter  because  the  risk  of 
damage  was  sufficient,  and  of  course  no  intention  to  cause  damage  was 
required." 

In  the  third  case,  The  Magnet  (g),  the  Court  of  Rotterdam  again 
applied  the  test  of  immediate  danger. 

The  fourth  case  is  The  Llanberis  (r).  In  this  case  the  ship  stranded 
upon  a  beach,  Avas  lightened,  and  got  oflE  by  the  use  of  the  engines;  and 
the  Court  of  Rotterdam,  consisting  of  three  judges,  other  than  those 
who  had  decided  the  former  cases,  held:  (1)  That  as  regards  general 
average  there  must  be  a  danger  threatening  damage  to  or  loss  of  shij) 
and  cargo,  but  it  is  not  necessary  that  the  danger  should  be  an  imme- 
diate threatening  danger,  i.e.,  so  immediately  threatening  that 
the  damage  or  loss  would  be  unavoidable  if  the  measure  were  not 
taken  immediately.  (2)  That  the  captain  when  he  put  the  engines 
in  motion  must  be  considered  as  having  acted  "  at  the  risk  of  such 
damage"  within  the  meaning  of  Rule  VII.,  because  an  experienced 
captain  must  have  known  that  the  use  which  was  made  of  the  engines 
while  the  Llanberis  was  fixed  upon  the  ground  involved  the  risk  of 
such  damage  as  was  caused  to  the  engines.  More  than  this  is  not  re- 
quired by  the  words  of  Rule  VII.,  and  especially  not  that  the  risk  of 
damage  must  appear  by  extrinsic  circumstances.  "I  think,"  Dr. 
Rahusen  adds,  "that  this  judgment  gives  a  perfect  exposition  of 
Rule  VII.,  and  that  it  is  fortunate  that  the  former  view  of  the  Court  of 
Rotterdam  has  been  abandoned." 

In  the  fifth  case,  The  Hambleton  (s),  the  same  Court  followed  its 
decision  in  The  Llanberis. 

There  are  also  decisions  upon  Rule  VIII.,  which  provides  that  "  when 
a  ship  is  ashore,  and,  in  order  to  float  her,  cargo,  bunker  coals,  and 
ship's  stores,  or  any  of  them  are  discharged,  the  extra  cost  of  lighten- 
ing, lighter-hire,  and  reshipping  (if  incurred),  and  the  loss  or  damage 
sustained  thereby,  shall  be  admitted  as  general  average."  Both  the 
Court  of  Rotterdam,  in  The  Othon  Statatos,  and  the  Arbitration  Com- 
mittee of  Amsterdam,  in  The  Addington  (t)  and  The  Delfland,  have 
held  that,  for  the  application  of  this  Rule,  it  is  not  necessary  that  the 
ship  should  be  in  peril.     It  is  sufficient  that  she  is  ashore. 


(q)  Weekblad  van  het  Recht,  No.  7258. 

(r)  Ibid.,  No.  7959. 

(.v)  /6'(^.,No.  8224. 

{()  Mag.  V.  H.,  xiii.  p.  132. 


THE  LAW  OF  ITALY. 


59^ 


APPENDIX  M. 


THE  LAW  OF  ITALY. 

The  Italian  Codice  di  Commercio  passed  into  law  iu  April,  1882, 
and  came  into  force  in  January,  1883,  replacing  the  Code  of  1865.  It 
is  g^ven  here  so  far  as  concerns  general  average.  For  the  revision  of 
the  notes,  the  editors  are  indebted  to  Mr.  Ernesto  Angelo  Pizzorno, 
Average-Adjuster,  of  Genoa. 


TIT.  VII.     CAP.  I. 

Delle  Avarie. 

642.  Sono  avarie  tutte  le  spese 
straordinarie  fatte  per  la  nave  e 
per  il  carico  unitamente  o  separata- 
men  te,  e  tutti  i  danni  che  accadono 
alia  nave  ed  al  carico,  dopo  il  cari- 
camento  e  la  partenza  sino  al 
ritorno  ed  alio  scaricamento . 

Le  avarie  sono  di  due  specie, 
avarie  grosse  o  comuni,  e  avarie 
semplici  o  particolari. 

Non  sono  avarie,  ma  semplici 
spese  a  carico  della  nave,  le  spese 
ordinariamente  necessarie  per  en- 
trare  nei  seni,  nei  fiumi  o  nei 
canali,  o  per  uscirne,  e  le  spese  per 
diritti  e  tasse  di  navigaziono. 

In  mancanza  di  convenzioni  spe- 
ciali  tra  le  parti,  le  avarie  sono 
regelate  secondo  le  disposizioni 
seguenti . 


TIT.  VII.     CAP.  I. 
Of  Average. 

642.  All  extraordinary  expenses 
incurred  by  ship  and  cargo,  con- 
jointly or  separately,  and  all 
damage  happening  to  ship  and 
cargo,  from  the  loading  and  set- 
ting sail  until  the  arrival  and  dis- 
charge, are  averages. 

Averages  are  of  two  kinds,  gross 
or  general  average,  and  simple  or 
particular  average. 

Ordinary  costs  of  entering  or 
leaving  bays,  rivers,  or  canals,  and 
navigation  dues,  are  not  averages, 
but  simple  charges  to  be  borne  by 
the  ship. 

In  the  absence  of  special  agree- 
ments between  the  parties,  aver- 
ages are  adjusted  by  the  following- 
rules  . 


643.  Sono  avarie  comuni  le  spese  |       643.  General    average    arc    the 
straordinarie  fatte,  ed  i  danni  sof-  •  extraordinary   expenses   incurred, 


598 


APPENDIX  M. 


ferti  voluntariameute  per  il  bene  e  '  and  the  damages  voluntarily  sus- 
per  la  salvezza  comune  della  nave  i  tained  for  the  good  and  for  the 
o  del  carico.  common  safety  of  ship  and  cargo. 


Tali  souo: 

1°.  Le  cose  date  per  composi- 
zione  o  a  titolo  di  riscatto  della 
nave  e  del  carico; 

2°.  Le  cose  gettate  in  mare  per 
salvezza  comune; 

3°.  Le  gomene,  gli  alberi,  le 
vele  o  altri  attrezzi  tagliati  per 
salvezza  commie,  e  quelli  rotti  in 
conseguenza  delle  operazioni  fatte 
per  salvezza  comune; 

4°.  Le  ancore,  catene,  ed  altri 
oggetti  abbandonati  per  la  sal- 
vezza commie; 


Such  are: 

1 .  Things  given  b}-  way  of  com- 
position or  as  ransom  for  the  ship 
and  the  cargo; 

2.  Things  thrown  into  the  sea 
for  the  common  safetv; 

3.  Cables,  masts,  sails,  or  other 
apparel  cut  away  for  the  common 
safety  (a),  and  things  broken  in 
consequence  of  measures  taken  for 
the  common  safety ; 

4.  Anchors,  chains,  and  other 
articles  abandoned  for  the  common 
safety  (fe) ; 


(a)  The  law  provides  that  the  cutting  away,  and  subsequent  jettison  of  the  masts 
for  the  common  safety  of  ship  and  cargo,  are  to  he  considered  general  average.  But 
when  the  masts  and  gear  have  already  been  broken  by  the  gale  or  the  high  seas,  that 
is  to  say,  in  a  case  of  accident  ot  force  majeure,  and  their  jettison  for  the  common  safety 
is  subsequently  decided,  it  is  reasonable  that  all  the  damage  is  not  to  be  deemed 
general  average.  In  this  state  of  things,  it  is  necessary  to  separate  the  two  consecu- 
tive casualties.  The  breakage  of  the  mast  in  consequence  of  the  storm  is  particular 
average  on  ship.  But  when  the  mast,  fallen  down  on  deck,  jeopardizes  the  general 
safety  of  the  property  at  risk  by  beating  against  the  ship's  sides  or  hindering  her 
navigation,  and  the  cutting  awaj-^  and  jettison  of  it  is  consequentlj'  decided,  then  the 
.sale  value  of  the  mast  and  gear  in  their  damaged  state  after  the  accident  will  be  mad& 
good  b}-  contribution. 

[b)  "  The  law  says  nothing  about  deduction  to  be  made  for  the  difference  between 
new  and  old.  But  the  following  seems  to  be  the  custom  of  the  adjusters  in  the 
majority  of  cases  :  — 

''No  deduction  from  the  amount  of  repairs  to  a  ship  if  she  is  on  her  first  voyage. 
Later  on,  a  third  is  deducted  for  difference  between  new  and  old. 

"  There  is  deducted  iu  case  of  new  copper  sheathing — 

"  One-fifth  for  every  year  employed  in  voyages  in  Europe  and  the  Atlantic. 

''  One-fourth  for  every  year  in  the  Pacific. 

"  One-third  for  every  year  in  the  Indian  Ocean. 

"If  the  sheathing  in  a  foreign  country  is  unusually  dear,  the  price  of  its  first  being 
put  on  must  be  taken. 

"  From  the  price  of  new  anchors  and  chains  replaced,  according  to  Genoese  custom, 
there  is  no  deduction  made,  but  in  other  places  a  sixth."     (Ul.  p.  141.) 


THE  LAW  OF  ITALY. 


599 


5°.  I  (lanni  cagionati  dal  getto 
alle  cose  rimaste  nella  nave; 


6^  I  danni  cagionati  alia  nave 
neir  operazione  del  getto,  volon- 
tariamente  o  per  conseguenza  ne- 
cessaria  di  esso ;  i  danni  recati  alia 
nave  per  facilitare  il  salvataggio 
del  carico  o  per  agevolare  lo  scolo 
o  r  esaurimento  delle  acque;  e  i 
danni  che  ne  derivarono  al  carico ; 


7°.  I  danni  cagionati  alia  nave 
ed  il  carico  nellc  operazioni  dirette 
ad  estinguere  un  incendio  a  bordo ; 

8°.  Le  spese  di  cura  e  di  vitto 
per  le  persone  ferite  in  difesa  della 
nave,  e  le  spese  funebri  in  case  di 
morte  delle  persone  stesse; 

9°.  I  salarii  e  il  vitto  delle  per- 
sone deir  equipaggio  durante  1'  ar- 
resto  o  r  impedimento,  quando  la 
nave  e  arrestata  in  viaggio  per 
ordine  di  una  Poteuza,  o  c  costretta 
a  trattenersi  in  un  porto  per 
sopravvenienza  di  guerra  o  altra 
simile  causa  che  impedisca  il 
viaggio  al  porto  di  destinazione, 
finche  la  nave  ed  il  carico  non  sono 
svincolati  dalle  loro  reciproche  ob- 
bligazioni; 

10°.  Le  spese  di  enti'ata  od  uscita 
e  le  tasse  di  navigazione  pagate  in 
un  porto  dove  la  nave  ha  dovuto 
far  rilaseio  forzato  per  causa  di 
tempesta,  caccia  di  nemici  o  pirati, 


5.  Damage  occasioned  by  the 
jettison  to  the  things  remaining 
on  board; 

6.  Damage  occasioned  to  the 
ship  in  the  operation  of  the  jettison 
voluntarily  or  by  necessary  conse- 
quence thereof;  damage  done  to 
the  ship  in  order  to  facilitate  the 
saving  of  the  cargo,  or  to  assist 
the  escape  or  pumping  out  of 
water;  and  damage  thereb}'  done 
to  the  cargo; 

7.  Damage  caused  to  ship  and 
cargo  by  the  measures  taken  to 
extinguish  a  fire  on  board  (c) ; 

8.  The  costs  of  curing  and  board- 
ing persons  wounded  in  defence  of 
the  ship,  and  funeral  expenses  in 
case  of  the  death  of  any  of  them. 

9.  The  wages  and  board  of  the 
crew  during  arrest  or  embargo  of 
the  ship,  when  the  ship  is  detained 
on  the  voyage  by  order  of  any 
State,  or  is  compelled  to  put  into  a 
port  through  the  breaking  out  of 
war  or  other  similar  cause  which 
hinders  the  voyage  to  the  port  of 
destination,  provided  the  ship  and 
the  cargo  are  not  released  from 
their  reciprocal  obligations; 


10.  The  expenses  of  entry  and 
exit,  and  the  harbour  dues,  paid 
in  a  port  in  which  the  ship  has 
been  obliged  to  take  refuge  by 
reason    of    tempest,    pursuit    by 


(c)  A  new  article  in  accordance  with  York- Antwerp  Rule  III. 


€00 


APPENDIX  M. 


o  vena  d'  acqua  cagionata  da  caso 
fortuito  o  da  forza  maggiore; 

11°.  I  salarii  e  il  vitto  delle  per- 
sone  deir  equipaggio  in  un  porto 
di  rilascio  forzato,  durante  il  tempo 
delle  riparazioni  necessarie  a  pro- 
seguire  la  navigazione,  quando  le 
riparazioni  costitmscano  avaria 
comvme ; 

12°.  Le  spese  di  scaricamento  e 
ricaricamento  degli  oggetti  messi 
a  terra  per  eseguire  le  suddette 
riparazioni  della  nave  in  un  porto 
di  rilascio  forzato,  le  spese  di 
custodia  e  i  fitti  dei  magazzini  ove 
gli  oggetti  stessi  f urono  depositati ; 


13°.  Le  spese  fatte  per  ottenere 
la  liberazione  o  la  restituzione  della 
nave  arrestata,  se  1'  arresto  non 
procedette  da  causa  riguardante 
esclusivamente  la  nave  o  le  per- 
sone  del  capitauo,  del  proprietario 


enemy    or    pirate,    or    leak    occa- 
sioned by  accident  or  vis  major ; 

11.  The  wages  and  board  of  the 
crew  in  a  port  of  refuge,  during 
the  time  of  the  repairs  necessary 
in  order  to  proceed  on  the  voyage, 
if  the  repairs  constitute  general 
average  {d) ; 


12.  The  expenses  of  discharging 
and  reloading  goods  sent  ashore (e) 
in  order  to  execute  the  above- 
mentioned  repairs  of  the  ship  in  a 
port  of  refuge,  the  costs  of  their 
safe  keeping,  and  the  hire  of  ware- 
houses to  deposit  the  said  goods 
m(/); 

13.  Expenses  incurred  to  obtain 
the  release  or  restitution  of  a  ship 
under  arrest,  if  the  arrest  did  not 
proceed  from  a  cause  which  af- 
fected excliisively  the  ship  or  the 
persons  of  the  captain,  owner,  or 


{d)  It  is  now  the  practice  also  to  treat  as  general  average  the  expenses  of  temporary- 
repairs  of  particular  average  when  the  ship  is  unable  without  repairs  to  prosecute  the 
voyage,  and  when  permanent  repairs  are  not  possible,  or  would  occupy  so  much  time 
as  to  prejudice  the  result  of  the  voyage.  From  the  general  average,  however,  the 
benefit  derived,  in  making  the  permanent  repairs,  from  the  temporary  repairs  must  be 
deducted. 

{e)  "  If  some  part  of  the  cargo  discharged  at  a  port  of  refuge  is  obliged  to  be  left 
there  because  of  not  being  able  to  be  again  loaded  on  board  (as  for  instance,  from 
want  of  experienced  stevedores),  it  is  usual  to  reckon  as  general  average  the  loss 
sustained  by  the  owners  of  the  goods  on  their  sale,  as  well  as  the  loss  of  freight  caused 
thereby  to  the  shipowner."     (Ul.  p.  142.) 

(/)  ^'hen  for  the  repair  of  particular  average  sustained  by  the  ship  in  consequence 
of  accident  ox:  force  majeure,  it  is  necessary  to  unload  the  cargo,  or  a  part  thereof,  the 
expenses  of  discharging  and  warehousing  are  particular  average  on  the  goods  landed. 
(Court  of  Appeal  of  Genoa,  11th  April,  1890  ;    Temi  Genovese,  1890,  243.) 

The  expenses  of  unloading  and  reloading  the  goods  discharged  are  not  general 
average  when  incurred  for  the  purpose  of  carrying  out  any  repairs  to  the  ship  to 
enable  her  to  prosecute  the  voyage,  but  only  when  incurred  for  the  purpose  of  repairs 
which  in  themselves  are  general  average.  (Commercial  Court  of  Cassation,  7th  June, 
1900  ;  Act,  1900,  825.) 


THE  LAW  OF  ITALY. 


601 


o  deir  armatorc,  ed  i  salarii  e  il 
vitto  delle  persone  dell'  equipaggio 
durante  il  tempo  necessario  per 
ottenere  tale  liberazione  e  restitu- 
zione,  se  questa  si  e  ottenuta; 

14°.  Le  spese  di  scaricamento 
per  alleggerire  la  nave  quando  cio 
abbia  dovuto  farsi  per  tempesta,  o 
per  altro  motivo  di  comune  sal- 
vezza  della  nave  e  del  carico;  e  i 
danni  che  la  nave  od  il  carico  ha 
sofferto  nella  operazione  di  scari- 
camento e  ricaricamento ; 

15°.  I  danni  sofferti  dalla  nave  o 
dal  carico  nell'  investimento  pro- 
dotto  volontariamente  per  salvare 
la  nave  da  tempesta,  da  preda,  o 
da  altro  pericolo  imminente; 

16°.  Le  spese  fatte  per  rimettere 
a  galla  la  nave  investita  nel  caso 
espresso  nel  numero  precedente,  e 
le  ricompense  dovute  per  le  opere  e 
i  servigi  prestati  in  tale  occasione ; 


ship's  husband ;  and  the  wages  and 
board  of  the  crew  during  the  time 
necessary  to  obtain  such  release 
and  restitution,  if  it  has  been  ob- 
tained; 

14.  The  expenses  of  discharging 
to  lighten  the  ship  when  rendered 
necessary  by  storm,  or  other 
motive  of  common  safety  for  ship 
and  cargo ;  and  the  damage  which 
the  ship  or  the  cargo  (g)  may 
sustain  in  the  operations  of  dis- 
charging and  reloading; 

15.  Damage  sustained  by  the 
ship  or  by  the  cargo  in  a  strand- 
ing brought  about  voluntarily  to 
save  the  ship  from  storm,  capture, 
or  other  imminent  peril  {h) ; 

16.  Expenses  incurred  in  float- 
ing off  a  ship  stranded  in  the  case 
provided  for  by  the  preceding 
number,  and  compensation  paid 
for  work  and  services  rendered  on 
such  occasions  (i) ; 


(ff)  "  Any  damage  caused  to  the  cargo  in  consequence  of  its  being  discharged  and 
reloaded  in  a  port  of  refuge  belongs  also  to  general  average,  if  such  damage  can 
clearly  be  traced  to  that  circumstance.  A  deficit  customary  to  such  goods  in  the 
ordinary  course  of  the  voyage  is  not  made  good,  and  must  be  deducted  from  the  loss 
certified  at  the  port  of  refuge."     (Ul.  p.  143.) 

(/j)  "  This  damage  is  not  admitted  into  general  average  if  the  ship  is  not  brought 
off."     (Ul.  p.  143.) 

The  general  rule  is  that  the  voluntary  stranding  of  a  ship  for  the  purpose  of  saving 
her  from  an  imminent  danger  is  general  average,  and  if  it  ceases  to  be  so  when  it  has 
been  caused  by  the  inherent  vice  or  age  of  the  ship,  or  by  the  fault  or  negligence  of 
the  captain,  this  constitutes  an  exception  which  is  to  be  proved  by  the  party  alleging 
it.     (Court  of  Appeal  of  Genoa,  26th  February,  1886  ;  Eco  Giur.  1886,  97.) 

The  stranding  of  a  ship  to  save  the  crew,  ship  and  cargo  is  general  average.  (Court 
of  Cassation  of  Palermo,  '28th  November,  1896  ;  La  Legge,  1897,  1,  263.) 

(i)  "Although  §  16  only  touches  upon  a  'voluntary'  stranding,  stUl  the  adjusters 
treat  the  costs  there  spoken  of  as  general  average,  even  in  an  '  accidental '  stranding. 
Not  only  the  expenses  incurred  for  the  bringing  off  of  the  stranded  vessel  (including 
even  the  price  of  coal  and  supplies  for  the  engine  in  steamers),  but  also  any  damages 


602 


APPENDIX  M. 


17°.  La  perdita  e  i  danni  sofferti 
dalle  cose  messe  sidle  barche  per 
alleggerire  la  nave  nei  casi  indicati 
nel  numero  14°,  comprese  le  quote 
di  contribuzione  che  si  dovessero 
alle  barche  stesse,  e  reciprocamente 
i  danni  sofferti  dagli  oggetti 
rimasti  a  bordo  della  nave,  in 
quanto  tali  danni  siano  considerati 
avarie  comuni; 

18°.  I  premii  e  gli  iuteressi  del 
cambio  marittimo  contratto  per  far 
front^e  alle  spese  annoverate  tra  le 
avarie  comuni,  e  i  premi  di  assi- 
curazione  delle  dette  spese,  come 
pure  la  perdita  che  dovesse  rim- 
borsarsi  al  proprietario  delle  cose 
caricate  vendute  durante  il  viaggio 
in  un  porto  di  rilascio  forzato  per 
far  f route  alle  spese  stesse; 

19°.  Le  spese  del  regolamento 
delle  avarie  comuni. 

Non  sono  considerati  avarie 
comuni,  aneorche  incontrate  volon- 
tariamente  per  il  bene  e  la  salvezza 
comune,  i  danni  sofferti  dalle  nave 
o  le  spese  fatte  per  essa,  quando 
provengano  da  vizio  o  vetusta  della 
nave  ovvero  da  colpa  o  da  negli- 
genza  del  capitano  o  delF  equi- 
paggio. 

Gli  attrezzi  e  gli  altri  oggetti  di 
corredo  e  d'  armamento  della  nave 
gettati  in  mare  e  le  ancore,  le 
catene    od    altri    oggetti    abban- 


17.  Loss  and  damage  sustained 
by  things  placed  in  boats  in  order 
to  lighten  the  ship  in  the  case  ex- 
pressed in  Xo.  14,  including  the 
amount  of  any  contribution  they 
may  owe  to  the  boats  themselves, 
and  reciprocally  any  damage  sus- 
tained by  the  things  remaining 
on  board  the  ship,  so  far  as  such 
damage  is  to  be  deemed  general 
average ; 

18.  Premiums  and  interest  on 
bottomrv  loans  contracted  to  raise 
funds  for  expenses  classified  as 
general  average,  and  the  cost  of 
insuring  such  bottomr}^  loans  or 
the  advance  for  such  expenses,  as 
likewise  the  loss  which  must  be 
reimbursed  to  the  proprietors  of 
cargo  sold  in  a  port  of  refuge  to 
raise  funds  for  such  expenses; 

19.  The  expenses  of  the  adjust- 
ment of  the  general  average  (k). 

Not  considered  general  average, 
though    incurred    voluntarily    for 
the  common  good  and  safety,  are 
damage  suffered  or  expenses  in- 
curred  by    the    ship,    when    they 
'  were    occasioned    by    the    defect 
or  old  age  of  the  ship,  or  by  the 
'  faidt  or  neglect  of  the  captain  or 
'  crew  (I). 

Rigging  and  any  other  ship's 
'■  furniture  and  apparel  jettisoned, 
I  and  anchors,  chains,  and  other 
'  things  slipped,  though  voluntarily 


caused  for  the  same  object,  are  general  average.  To  the  latter  belong  damage  to  or 
losses  of  anchors,  chains,  saUs,  or  machinery,  if  these  have  obviously  arisen  from  the 
bringing  off  shore."     (Ul.  p.  143.) 

(/.•I  "Damage  caused  to  ship's  appurtenances  and  cargo  by  press  of  sail  is  con- 
sidered  general  average."     (Ul.  p.  144.) 

(I)  See  infra,  p.  GIO.  note  [t). 


THE  LAW  OF  ITALY. 


60a 


donati,  aneorche  volontariamente 
per  il  bene  e  la  salvezza  eomune, 
non  sono  calcolati  nella  riparti- 
zione  delle  avarie,  se  non  in  quanto 
si  trovino  debitament(>  descritti 
neir  inventario  di  bordo,  tenuto 
secondo  le  disposizioni  dell'  arti- 
colo  500. 

II  getto  delle  provvigioni  di 
bordo  non  puo  essere  considerate 
in  nessun  caso  come  avaria 
eomune. 


for  the  common  good  and  safety, 
are  not  included  in  the  average 
statement,  if  not  found  duly  de- 
scribed in  the  inventory  on  board, 
kept  according  to  §  500  (w). 


In  no  ease   is  jettison  of  pro- 
sions     on     board 
general  average  (n) . 


visions     on     board    regarded    as 


644.  Sono  considerati  come 
avarie   comuni: 

1°.  II  prezzo  o  1'  indemnita  di 
riseatto  delle  persone  dell'  equi- 
paggio  mandate  a  terra  per  ser- 
vizio  della  nave  e  fatto  prigioniere 
o  ritenute  in  ostaggio; 

2°.  Le  speso  d'  una  quarantena 
straordinaria  non  preveduta  all' 
epoca  del  contratto  di  noleggio,  se 
essa  colpisce  egualmeute  la  nave 
ed  il  carico,  coinpreso  il  salario  e  il 
vitto  delle  persone  dell'  equipaggio 
durante  la  quarantena. 

G45.  Se  vi  e  neeessita  di  far 
getto,  le  cose  meno  necossarie,  le 
piu  pesanti  e  di  minor  valore 
devono,  per  quanto  e  possibile, 
essere  gettate  le  prime,  ed  in 
seguito  quelle  del  primo  ponte,  e 
successivamente  le  altre. 

646.  Sono  avarie  particolari  tutti 
danni  sofferti  e  tutte  le  spese  fatte 


644.  Are  considered  as  general 
average : 


1.  The  expenses  of  ransoming 
any  of  the  crew  sent  ashore  in  the 
service  of  the  ship,  and  made 
prisoner  or  kept  as  hostage; 

2.  The  expenses  of  an  extra- 
ordinary quarantine  not  provided 
for  in  the  contract  of  affreight- 
ment, if  it  affects  equally  the  ship 
and  cargo,  including  the  wages 
and  board  of  the  crew  during 
the  quarantine. 

645.  If  there  is  need  of  a  jetti- 
son, the  things  less  necessary,  of 
the  greatest  weight  and  least  value, 
should  as  far  as  possible  be  first 
thrown  over,  afterwards  those 
from  below  deck,  and  so  on  suc- 
cessively. 

646.  To  particular  average  be- 
long all  damage  suffered,  and  all 


{tn)  Art.  oOO  gives  minute  instructions  as  to  the  carrying  of  log-books,  &c. 

(«)  The  justice,  ur  even  reason,  of  this  clause,  which  was  not  in  the  former  Code,  is 
not  clear,  but  a  reference  to  §  648  leaves  no  doubt  that  it  is  a  deliberate  change.  (See 
§  648  and  note.) 


604 


APPENDIX  M. 


per   la   sola    nave    o    per    il   .solo      expenses    incui'red,  for    the    ship 


carieo. 

Tali  sono: 

1°.  Qualunche  perdita  o  danno 
sofferto  dalle  cose  caricate  per 
tempesta,  incendio,  preda,  nau- 
fragio,  investimento,  rottura,  o 
altro  qualsiasi  caso  fortuito  o  di 
forza  maggiore; 

2°.  La  perdita  degli  alberi,  delle 
gomene,  delle  ancore,  delle  vele,  e 
delle  corde,  e  qualunque  altro 
danno  sofferto  dalla  nave  per  le 
cause  espresse  nel  nuraero  pre- 
cedente; 

3'^.  Qualunque  danno  sofferto 
per  vizio  proprio  della  nave  o  del 
carieo ; 

4°.  Le  spese  di  qualunque  ap- 
prodo  cagionato  da  vizio  della 
nave,  da  vena  d'  acqua  proveni- 
ente  da  vetusta,  da  mancanza  di 
provvigioni  di  bordo,  o  da  causa 
qualunque  imputabile  all'  arma- 
tore  o  al  capitano; 

5°.  n  salario  e  il  vitto  dei 
marinai  durante  la  quarantena 
ordinaria,  o  durante  le  riparazioni 
provenienti  da  vizio  o  vetusta 
della  nave  o  da  altra  causa  im- 
putabile al  proprietario,  all'  arma- 
tore  o  al  capitano,  o  dvirante  1' 
arresto  o  la  stazione  in  un  porto 
che  riguardi  la  sola  nave  o  il  solo 
carieo,  e  le  spese  per  ottenere  in 
questo  caso  la  liberazione  dell"  una 
o  deir  altro; 


alone,  or  for  the  cargo  alone. 

Such  are: 

1.  Any  loss  or  damage  sustained 
by  the  cargo  through  storm,  fire, 
plunder,  shipwreck,  stranding, 
breakage,  or  other  the  like  acci- 
dent or  vis  major ; 


2.  The  loss  of  spars,  hawsers, 
anchors,  sails,  ropes,  or  any  other 
damage  suffered  by  the  ship 
through  the  causes  expressed  in 
the  preceding  number; 

3.  Any  damage  sustained 
through  the  vice  jtropre  of  the  ship 
or  of  the  cargo; 

4.  The  expenses  of  any  putting 
into  port  occasioned  by  a  defect 
of  the  ship,  by  leakage  proceeding 
from  old  age,  by  want  of  provi- 
sions on  board,  or  by  any  other 
cause  imputable  to  the  ship's  hus- 
band or  the  captain; 

5.  The  wages  and  board  of  the 
seamen  during  the  ordinary  quar- 
antine, and  during  repairs  residt- 
ing  from  the  defect  or  age  of  the 
ship  or  other  cause  imputable  to 
the  owner  or  .ship's  husband  or 
captain,  or  during  an  arrest  or 
detention  in  a  port  which  concerns 
the  ship  alone  or  the  cargo  alone, 
and  the  expenses  of  obtaining  in 
such  a  case  the  release  of  the  one 
or  the  other; 


6^.   Le  spese   fatte  per  conser-  6.  Expense  incurred  for  the  pre - 

vare  le  cose  caricate  o  riparare  i     servation  of  the  cargo,  or  to  repair 


THE  LAW  OF  ITALY. 


605 


fusti,  ]e  casse  o  gli  involti  in  cui 
sono  contenute,  quando  queste 
spese  non  procedano  da  danni  con- 
siderati  avarie  comuni; 


7°.  L'  eccedenza  del  nolo  nel 
caso  espresso  nell'  articolo  570. 

I  danni  accaduti  alle  cose  cari- 
cate  per  accidenti  provenienti  dalla 
negligenza  del  capitano  o  delle 
altre  persone  dell'  equipaggio 
sono  avarie  particolari  a  carico 
del  proprietario  delle  cose  stesse, 
salvo  il  regresso  verso  11  capitano 
o  sulla  nave  e  sul  nolo. 

I  danni  provenuti  ai  proprietari 
della  nave  per  una  piu  lunga  ed 
arbitraria  stazione  nei  porti,  sono 
risarciti  dal  capitano. 


TIT.  TIL    CAP.  II. 

Della  Coktribuzione. 

647.  Le  avarie  particolari  sono 
sopportate  e  pagato  dal  proprie- 
tario della  cosa  che  ha  sofferto  il 
danno  o  dato  occasione  alia  spesa. 

Le  avarie  comuni  sono  ripartite 
proporzionat-amente  tra  il  carico  e 
la  meta  della  nave  e  del  nolo. 


the  bales,  cases,  or  wrappings 
which  contain  it,  when  these  ex- 
penses do  not  proceed  from  such 
damage  as  is  deemed  general  aver- 
age; 

7.  The  excess  of  freight  in  the 
case  provided  for  by  Art.  570. 

Damage  caused  to  the  cargo  by 
accidents  arising  from  the  negli- 
gence of  the  captain  or  any  of  the 
crew  is  particular  average  to  be 
borne  by  the  owner  of  the  things 
themselves,  saving  his  recourse 
against  the  captain  or  ship  and 
freight. 

Loss  occasioned  to  the  owners  of 
the  ship  from  a  too  long  and  un- 
necessary stay  in  a  port,  is  to  be 
made  good  by  the  captain. 


TIT.  VII.    CAP.  II. 
On  Contribution. 

647.  Particular  average  is  borne 
and  paid  by  the  owner  of  the 
thing  which  has  sustained  the 
damage  or  occasioned  the  expense. 

General  average  is  distributed 
proportionally  over  the  cargo,  and 
the  half  of  ship  and  freight  (o). 


(o)  "  (a)  The  ship  contributes  to  general  average  upon  the  half  of  that  value  which 
it  possesses  at  the  end  of  the  voyage.  The  half,  too,  of  the  value  which  has  been 
compensated  in  general  average  is  contributor}-. 

"  (b)  The  freight  contributes  on  the  half  of  its  gross  amount  as  stated  in  the  bills  of 
lading. 

"  (c)  The  cargo  contributes  on  its  value  at  the  place  of  destination,  minus  freight, 
customs,  landing  charges,  and  sale  expenses.  If  the  goods  reach  the  place  of  discharge 
in  a  damaged  condition,  then  they  only  contribute  to  general  average  on  the  value 
they  have  in  their  damaged  state. 

"  Papers  of  value  which,  in  the  event  of  their  loss,  would  not  be  payable,  contribute 
also  in  general  average.     Commercial  bills  of  exchange  do  not  contribute. 

"  (d)  The  lender  on  bottomry  contributes  in  place  of  the  borrower  on  bottomry  to 


606 


APPENDIX  M. 


I  valori  delle  cose  sacrificate 
vanno  compresi  nella  formazione 
della  massa  che  deve  contribuire. 

648. 1  bagagli  delle  persone  dell' 
equipaggio  e  dei  passeggieri  non 
contribuiscono  all'  avaria  comune 
se  sono  salvati,  e  danno  diritto  a 
contribuzione  se  sono  gettati  o 
danneggiati. 

649.  Le  cose  caricate  delle  quali 
non  vi  e  polizza  di  carico,  ne 
dichiarazione  del  capitano,  non 
sono  pagate  se  sono  gettate,  e 
contribuiscono  se  sono  salvate. 


The  value  of  articles  sacrificed 
is  included  in  making  up  the  sum 
total  of  contributory  values. 

648.  Personal  (p)  effects  of  the 
crew  and  the  passengers  do  not 
contribute  to  general  average  if 
saved,  and  can  claim  contribution 
if  jettisoned  or  damaged. 


649.  Any  cargo  for  which  there 
is  no  bill  of  lading  nor  declaration 
of  the  captain,  is  not  paid  for  if 
jettisoned,  and  contributes  if 
saved. 


650.  Le  cose  caricate  sulla  co- 
perta  della  nave  contribuiscono 
sempre  alle  avarie  comuni  se  sono 
salvate. 

Quando  sono  gettate  o  danneg- 
giate  per  il  getto,  salvo  il  caso  dei 
viaggi  preveduti  nell'  idtimo  capo- 
verso  deir  articolo  498,  non  danno 
azione  per  le  perdite  ed  i  danni, 
che  contro  il  capitano  che  le  ha 
caricate  .sulla  coperta  senza  il 
consenso  scritto  del  caricatore.  In 
caso  contrario  ha  luogo  una  spe- 
ciale  contribuzione  tra  la  nave,  il 


650.    Cargo     loaded     on     deck 

general 


always     contributes     to 
average  if  saved. 


If  jettisoned  or  damaged  by  the 
jettison,  except  in  the  case  of 
voyages  provided  for  in  the  last 
clause  of  Article  498  (q),  they  can- 
not claim  compensation  for  losses 
and  damage,  except  against  a 
captain  who  has  laden  them  on 
deck  without  the  written  consent 
of  the  shipper.  In  other  cases 
there     is    a    special     contribution 


any  general  average  arising  after  the  signing  of  the  bottomry  contract,  and  any 
contrary  arrangement  is  null  and  void. 

"  §  444.  Those  who  lend  on  bottomry  contribute  to  general  averages  in  the  place  of 
those  who  borrow.  Any  contrary  agreement  is  null.  Particular  averages,  however, 
fall  on  the  lenders  if  there  is  no  contrary  arrangement."     (Ul.  p.  145.) 

{p)  The  corresponding  article  of  the  former  Code  (§  527)  ran  :—"  Ammunition  of 
war,  provisions,  and  the  personal,"  &c.     Compare  last  clause  of  §  643. 

(?)  Art.  498.  The  last  clause  runs  :— "  The  captain  is  responsible  for  any  damage 
which  happens  from  whatsoever  cause  to  things  loaded  by  him  oq  deck  without  the 
written  consent  of  the  shipper.  This  consent  is  taken  for  gi-anted  with  regard  to  trips 
limited  to  the  coasts  of  the  administrative  maritime  department  within  who.-^e 
boundaries  they  are  made,  and  into  the  neighbouring  department,  and  iu  the  naviga- 
tion of  ri\-ers  and  lakes." 


THE  LAW  OF  ITALY. 


607 


nolo,  e  le  altre  cose  caricate  sulla 
coperta  col  consenso  del  caricatori, 
senza  preg-iudizio  della  contribu- 
zione  generale  per  le  avarie  co- 
muni  a  tutto  il  carico. 


651.  Se  il  getto  non  salva  la 
nave,  non  vi  e  luogo  a  contri- 
buzione.  Lo  coso  salvate  non  sono 
soggette  al  paganiento  delle  cose 
gettate,  ne  al  risarciamento  del 
danno  sofferto  dalle  altre. 

Se  il  getto  salva  la  nave  e  questa, 
continuando  il  suo  viaggio  si  perde, 
le  cose  salvate  contribuiscono  al 
getto  secondo  il  loro  valore  nello 
state  in  cui  si  trovano,  dedotte  le 
spese  di  salvamento. 

Le  cose  gettate  non  contri- 
buiscono in  alcun  caso  al  paga- 
mento  dei  danni  accaduti  dopo  il 
getto  alle  cose  salvate. 

II  carico  non  contribuisee  al 
pagamento  della  nave  perduta  o 
resa  inabile  a  navigare. 

652.  Nel  caso  di  perdita  delle 
co.se  poste  in  bardie  per  allog- 
gerire  la  nave,  la  ripartizione  della 
perdita  e  fatta  sulla  nave  o  sul 
carico  per  intiero . 

Se  la  nave  si  perde  col  resto  del 
carico,  non  vi  e  luogo  a  eontri- 
buzione  per  le  cose  poste  sugli 
scafi,  ancorche  arrivino  a  buon 
porto. 

653.  So  doj)o  la  ripartizione  le 
co.se  gettate  sono  ricuperate  dai 
proprietarii,  qucsti  devono  resti- 
tuire  al  capitano  ed  agli  interessati 
quanto  hanno  ricevuto  per  effetto 


between  ship,  freight,  and  any 
other  things  laden  on  deck  with 
the  consent  of  the  shippers,  with- 
out prejudice  to  the  general  con- 
tribution for  general  average  over 
all  the  cargo. 

651.  If  the  jettison  does  not  save 
the  ship,  there  is  no  occasion  for 
contribution.  Things  saved  are  not 
bound  to  pay  for  things  jettisoned, 
nor  to  compensate  for  damage 
sustained  by  others. 

If  the  jettison  saves  the  ship, 
and  in  the  fui^ther  course  of  her 
voyage  she  is  lost,  the  things  saved 
contribute  to  the  jettison  according 
to  their  value  in  the  state  in  which 
they  are  found,  deducting  costs  of 
salvage. 

Things  jettisoned  do  not  con- 
tribute in  any  case  to  the  payment 
of  damage  happening  after  the 
jettison  to  the  things  saved. 

The  cargo  does  not  contribute  to 
pay  for  the  ship  if  she  is  lost  or 
rendered  innavigable. 

652.  In  the  case  of  things  put 
in  barges  to  lighten  the  ship,  the 
distribution  of  the  loss  is  made 
over  ship  and  cargo  altogether. 

If  the  ship  with  the  rest  of  the 
cargo  on  board  is  lost,  there  is  no 
occasion  for  contribution  from  the 
things  laden  on  the  boats,  even  if 
they  do  arrive  in  safety. 

65.3.  If  after  the  repartition  any 
things  jettisoned  are  recovered  by 
their  owners,  these  are  bound  to 
restore  to  the  captain,  and  other 
parties  interested,  what  they  may 


608 


APPENDIX  M. 


della  contribuzione,  dedotti  i  danni 
cagionati  dal  getto  e  dalle  spese  di 
ricuperamentx). 

654.  La  nave  contribuisce  per  il 
suo  valore  nel  luogo  dello  scarica- 
meiito  o  per  il  prezzo  di  vendita, 
fatta  deduzione  delle  avarie  parti- 
colari,  anche  posteriori  all'  avaria 
comune. 

II  nolo,  che,  per  effetto  della  con- 
venzione  accennata  nell'  articolo 
577,  e  guadagnato  anche  in  caso 
di  perdita  delle  cose  caricate,  non 
e  soggetto  a  contribuzione. 

655.  Le  cose  salvate  e  quelle 
gettate  o  altrimente  sacrificate  con- 
tribuiscono  in  proporzione  del  loro 
valore  netto  nel  luogo  del  scarica- 
mento.  Se  vi  e  la  convenzione 
indicata  nell'  articolo  precedente,  il 
nolo  non  si  deduce  dal  valore. 

656.  La  natura,  la  specie  e  la 
qualita  delle  cose  die  devono  con- 
tribuire,  e  di  quelle  gettate  o  sacri- 
ficate, sono  stabilito  colla  presen- 
tazione  delle  polizze  di  carico  e 
delle  fatture,  e  in  mancanza  con 
altri  mezzi  di  prova. 

Quando  nella  polizza  di  carico  e 
simulata  una  qualita  o  e  simulato 
.  un  valore  delle  cose  caricate  in- 
feriore  al  vero,  esse  contribuiscono 
second©  il  loro  valore  reale  se  sono 
salvate,  e  si  pagano  in  ragione 
della'  qualita  e  del  valore  indicate 
se  sono  gettate  o  danneggiate. 

Se  invece  e  simulata  una  qualita 
o  e  simulato  un  valore  superioro  al 
vero,  le  cose  caricate  contribuis- 
cono in  ragione  della  qualita  o  del 


have  received  from  contribution, 
minus  the  damage  caused  by  jet- 
tison and  salvage  costs. 

654.  The  ship  contributes  on  her 
value  at  the  place  of  discharge,  or 
at  her  sale  price,  deducting  par- 
ticular averages,  even  if  posterior 
to  the  general  average. 

Freight,  which,  by  reason  of  the 
agreement  alluded  to  in  §  577,  has 
been  earned  even  in  case  of  the 
loss  of  the  cargo,  is  not  subject 
to  contribution. 

655.  Things  saved,  and  those 
jettisoned  or  otherwise  sacrificed, 
contribute  in  proportion  to  their 
net  value  at  the  port  of  discharge . 
If  there  is  any  agreement  such  as 
that  alluded  to  above,  freight  is 
not  deducted  from  the  value. 

656.  The  natiire,  species,  and 
quality  of  the  things  that  have  to 
contribute,  and  of  those  jettisoned 
and  sacrificed,  are  verified  by  the 
production  of  the  bills  of  lading 
and  invoices,  and  failing  these  by 
other  means  of  proof. 

If  in  the  bill  of  lading  the 
quality  or  value  of  the  cargo  is  set 
forth  at  less  than  its  real  one,  it 
must  contribute  according  to  its 
real  value  if  saved,  and  be  paid 
for  at  the  rate  of  the  quality  and 
value  indicated  if  jettisoned  or 
damaged. 

On  the  other  hand,  if  a  quality 
or  value  is  pretended  greater  than 
its  real  one,  the  cargo  shall  con- 
tribute at  the  rate  of  the  quality 


THE  LAW  OF  ITALY. 


60y 


valore  indicate  se  sono  salvate,  e  si 
pagano  secondo  il  loro  valore  reale 
se  sono  gettate  o  danneggiate. 

657.  II  capitano  deve  fare  pro- 
eesso  verbale  d'  ogni  determina- 
zione  presa  e  delle  operazioni 
eseguite  per  la  salvezza  coinune, 
appena  cio  gli  sia  possibile. 

II  processo  verbalo  deve  espri- 
mere  i  motivi  della  determiiiazione 
ed  indicare  sonimariamente  le  cose 
sacrifieate  o  danneggiate;  dev'  es- 
sere  sottoscritto  dai  prineipali  dell' 
equipaggio  od  accennare  i  motivi 
del  loro  rifiuto,  e  dev'  essere  tras- 
critto  nel  giornale  nautico. 

Una  copia  di  questo  processo 
verbale  sottoseritta  dal  capitano 
dev'  essere  unita  alia  relazione 
indicata  nell'  articolo  516. 

658.  La  descrizione,  la  stima  e  la 
ripartizione  delle  perdife  e  dei 
danni  e  fatta  nel  luogo  dello  scari- 
camento  della  nave  a  eura  del 
capitano  e  per  mezzo  di  periti 
nominati,  nel  Regno,  dal  presi- 
dente  del  Tribunale  di  Commereio, 
e  in  mancanza,  dal  pretore,  e  in 
paese  estero,  dall'  ufficiale  conso- 
lare  o  da  chi  ne  fa  le  veci,  e  in 
mancanza,  dall'  autorita  locale. 

La  ripartizione  proposta  dai 
periti  e  sottoposta  all'  esame,  nel 
Regno,  del  Tribunale  di  Com- 
mereio, e  in  paese  estero  del  regie 


or  value  indicated  if  saved,  and 
be  paid  for  at  the  real  value  if 
jettisoned  or  damaged. 

657.  The  captain  must  make  a 
formal  statement  of  every  decision 
taken,  and  of  measures  effected  for 
the  common  safety  as  soon  as 
possible. 

This  statement  must  contain  the 
motives  of  the  decision,  and  specify 
the  articles  sacrificed  or  damaged; 
it  should  be  signed  by  the  chief 
members  of  the  crew  or  give  the 
reasons  for  their  refusal,  and  must 
be  copied  in  the  log-book. 

A  copy  of  this  statement  signed 
by  the  caplain  should  be  added 
to  the  report  mentioned  in 
§516(r). 

658.  The  description,  valuation, 
and  distribution  of  losses  and 
damages,  is  drawn  up  at  the  place 
of  the  ship's  discharge  (s)  under 
the  captain's  superintendence,  and 
by  means  of  experts  appointed, 
if  within  the  kingdom,  by  the 
president  of  the  Tribunal  of  Com- 
merce, or  failing  him  by  the  judge, 
and  in  foreign  countries  by  (he 
consular  officer  or  his  deputy,  or 
failing  him  by  the  local  authority. 

The  adjustment  drawn  up  by 
the  experts  is  verified,  if  in  the 
kingdom,  by  the  Tribunal  of  Com- 
merce, or  in  foreign  parts  by  the 


(>•)  ^516  contains  regulations  about  the  protests  and  statements,  &c.  that  captains 
have  to  make. 

(s)  "  If  whip  and  carofo  part  company  at  the  port  of  refuge,  either  because  the 
voyage  is  given  up  or  the  ship  condemned,  and  the  cargo  forwarded  some  other  way, 
the  adjustment  should  be  drawn  up  at  the  port  of  refuge."     (Ul.  p.  148.) 

L.  R   R 


610 


APPENDIX  M. 


console  o  di  chi  ne  fa  le  veci,  o 
deir  autorita  locale  eompetente. 

659.  Non  puo  aver  luogo  azione 
di  avaria  contro  il  noleggiatore  e 
contro  il  destinatorio,  se  il  capitano 
ha  ricevuto  il  nolo  e  consegnate  le 
cose  caricate  senza  protesta,  quand' 
anche  il  pagamento  del  nolo  sia 
stato  anticipato. 

TIT.  I. 
Delle  Navi  e  DEI  Proprirtari 

DELLE  NAVI. 

491.  I  proprietari  di  navi  sono 
risponsabili  dei  fatti  del  capitano  e 
tenuti  per  le  obbligazioni  contratte 
dal  capitano  per  cio  die  concerne  la 
nave  e  la  spedizione.  Tuttavia  ogni 
proprietario  o  compropriefario  che 
non  ha  contratto  obbligazione  per- 
sonale  puo  in  tutti  i  casi,  mediante 
r  abbandono  della  nave  e  del  nolo 
esatto  o  da  esigere,  liberarsi  dalla 


consul  or  his  deputy,  or  the  proper 
local  authority. 

659.  There  is  no  ground  for  an 
action  for  average  against  the 
freighter  or  consignee,  if  the  cap- 
tain has  received  the  freight  and 
delivered  the  cargo  without  pro- 
test, even  if  the  payment  of  freight 
had  been  anticipated. 


TIT.  I. 

Of  Ships  and  the  Owners  of 
Ships. 

491.  The  owners  of  ships  are 
responsible  for  the  acts  of  the 
captain,  and  bound  by  the  obliga- 
tions contracted  by  him,  so  far  as 
concerns  the  ship  and  the  adven- 
ture (f).  In  all  cases  any  owner 
or  part-owner,  who  has  not  con- 
tracted personal  obligations,  can 
always  by  the  abandonment  of 
ship     and     freight     free     himself 


{t)  The  parties  are  permitted  to  derogate  in  the  charter-party  from  the  provision 
(see  Art.  643  (19)),  which  excludes  from  general  average  losses  arising  from  the  fault 
of  the  captain. 

If  the  non-liability  of  the  owner  for  the  faults  of  the  captain  is  stipulated  in  the 
bill  of  lading,  the  shipowner  is  entitled  to  demand  contribution  from  the  shippers  to 
general  average  occasioned  by  a  fault  of  the  captain,  his  act  being  considered  equal, 
by  virtue  of  the  exemptive  clause,  to  accident  or  force  majeure.  (Court  of  Appeal  of 
Genoa,  26th  July,  1905  ;    Diritto  Maritimo,  1906,  203.) 

Clauses  in  the  bills  of  lading,  intended  to  exclude  the  responsibility  of  the  shipowner 
for  1  he  faults  both  of  the  captain  and  crew,  and  of  the  ship's  agents,  are  valid.  (Court 
of  Cassation  of  Turin,  10th  April,  1908  ;  F.  It.  1,  128.) 

A  clause  exempting  the  owner  of  the  ship  from  responsibility  for  the  fault,  negh'- 
gence  or  unsl?ilfulness  of  the  captain  is  valid.  (Court  of  Cassation  of  Turin,  27th 
July,  1904;  Tend  Genovese,  1904,  .t13.)  To  the  same  effect  (Court  of  Cassation  of 
Florence,  Italian  Forum,  1886,  795 ;  Court  of  Cassation  of  Rome,  Italian  Forum, 
1895,  587),  such  a  clause  does  not  contain  anything  contrary  to  public  policy  or 
morality.     (Court  of  Cassation  of  Naples,  9th  December,  1907  ;   R.  di  D.  M.  1908,  81.) 

The  clause  by  which  the  shijiowuer  is  exempted  from  responsibility  for  the  acts, 
both  nautical  and  commercial,  done  by  the  captain  or  crew  during  navigation  is  valid. 
(Court  of  Appeal  of  Genoa,  14th  June,  1909  ;  Diritto  Maritimo,  1909,  257.) 


THE  LAW  OF  ITALY. 


till 


risponsabilita  e  dalle  obbligazioni 
suddette,  ad  eccezione  di  quelle  per 
i  salarii  e  gli  emolumenti  delle  per- 
sone  deir  equipaggio. 

La  facolta  di  fare  1'  abbandono 
non  ispetta  a  chi  e  nel  tempo  stesso 
capita.no  e  proprietario  o  compro- 
prietario  della  nave.  Qualora  il 
capitano  non  sia  che  coniproprie- 
tario,  in  mancanza  di  speciale  con- 
venzione,  egli  non  e  tenuto  per- 
senalraente  per  le  obbligazioni  da 
lui  contratte  per  cio  che  concerne 
la  nave  e  la  spedizione,  che  in  pro- 
porzione  del  suo  interesse. 

TIT.   V. 
Del  Prestito  a  Cambio  marit- 

TIMO. 

603.  Coloro  che  danno  a  cam- 
bio marittimo  contribuiscono  alle 
avarie  comiini  a  scarico  di  coloro 
che  prendono;  ogni  convenzione 
contraria  e  nulla. 

Le  avarie  particolari  non  sono  a 
•carico  di  coloro  che  danno  a  cambio 
marittimo,  se  cio  non  e  convenuto; 
ma  se  per  effetto  di  avaria  parti- 
colare  le  cose  vincolate  al  prestito 
non  bastano  a  soddisfare  il  credi- 
tore,  egli  sopporta  il  danno  che  ne 
deriva. 

TIT.  IV. 

Del  Contratto  dt  Noleggio. 

567.  II  caricatore  che  durante 
il  viaggio  ritira  le  cose  caricate 
deve  pagare  il  nolo  per  intiero  e 
tutte  le  spese  di  traslocazione 
cagionate  dallo  scaricamento. 

R 


from  responsibility  and  the  above 
obligations,  with  the  exception  of 
the  wages  and  emoluments  of  the 
crew. 

The  liberty  of  making  an  aban- 
donment doe.s  not  belong  to  one 
who  is  at  the  same  time  captain 
and  owner  of  the  ship.  When  the 
captain  is  only  a  part-owner,  fail- 
ing any  special  agreement,  he  is 
not  bound  personally  by  the  ob- 
ligations contracted  by  him  so  far 
as  concerns  the  ship  and  adven- 
ture, except  in  proportion  to  his 
interest. 

TIT.  y. 

Of  Bottomry. 

603.  The  lenders  on  bottomry 
contribute  to  general  average  in- 
stead of  the  borrowers;  any  con- 
trarv  ae-reement  is  null. 

Particular  averages  do  not  fall 
on  the  lender  on  bottomry,  if  not  so 
agreed;  but  if  by  reason  of  par- 
ticular average  the  things  pledged 
are  not  enough  to  satisfy  the 
creditor,  he  must  bear  the  loss 
thus   arising. 


TIT.  IV. 

Of  the  Contract  of  x^ffreight- 
ment. 

.567.  A  shipper  who  withdraws 
his  goods  during  the  voyage  must 
pay  the  freight  in  full,  and  all  the 
expenses  of  displacement  occa- 
sioned by  the  discharge. 
K  2 


612 


APPENDIX  M. 


Se  le  cose  sono  ritirate  per  fatto 
o  colpa  del  capitano,  questi  e  ris- 
ponsabile  dei  daniii  e  delle  spese. 


570.  Se  il  capitano  e  costretto 
per  caso  fortuito  o  forza  maggiore 
a  fare  riparare  la  nave  nel  corso  del 
viaggio,  il  noleggiatore  deve  aspet- 
tare  o  pagare  il  nolo  intiero. 

Se  la  nave  non  puo  essere  ri- 
parata,  il  nolo  e  dovuto  in  propor- 
zione  del  viaggio  fatto. 

Se  per  condurre  le  cose  caricate 
alia  loro  destinazione  il  capitano 
noleggia  un'  altra  nave,  il  nuovo 
noleggio  s'  intende  fatto  per  contc 
del  caricatore. 

575.  II  nolo  e  dovuto  per  le  cose 
caricate  die  il  capitano  e  state 
costretto  a  vendere  o  dare  in  pegno 
o  ad  impiegare  per  i  bisogni  ur- 
genti  della  nave. 

Egli  deve  pero  rimborsare  ai 
proprietarii  il  valore  che  le  cose 
stesse  avrebbero  nel  luogo  di 
scaricamento,  se  la  nave  e  giunta 
a  buon  porto. 

Se  la  nave  e  perduta,  il  capi- 
tano deve  rimborsare  ai  proprie- 
tarii delle  cose  vendute  od  im- 
piegate  il  prezzo  che  ne  ha  ritratto, 
e  per  quelle  date  in  pegno  la 
somma  avuta  in  prestito,  ritenendo 
parimente  il  nolo  risultante  dalle 
polizze  di  carico. 

E  salvo  in  questi  due  casi  ai 
proprietari  della  nave  il  diritto  di 
far  r  abbandono. 

Qualora  dall'  esercizio  di  questo 
diritto  risulti  una  perdita  per 
coloro   ai    quali    appart-engono    le 


If  the  things  are  withdrawn 
through  the  act  or  fault  of  the 
captain,  the  latter  is  answerable 
for  the  loss  and  expense. 

570.  If  the  captain  is  compelled 
by  accident  or  vis  major  to  repair 
the  ship  in  the  course  of  the 
voyage,  the  merchant  is  obliged  to 
wait,  or  pay  the  freight  in  full. 

When  the  ship  cannot  be  re- 
paired, freight  is  due  in  the  pro- 
portion of  the  voyage  performed. 

If  the  captain  hires  another 
ship  to  carry  on  the  goods  to  their 
destination,  the  new  affreightment 
is  understood  to  be  made  on  ac- 
count of  the  merchant. 

575.  Freight  is  due  for  the 
cargo  which  the  captain  has  been 
compelled  to  sell  or  give  in 
pledge,  or  to  employ  for  the 
urgent  necessities  of  the  ship. 

He  must  however  refund  to  the 
owners  the  value  the  things  would 
have  had  at  the  port  of  discharge, 
if  the  ship  arrives  in  safety. 

If  the  ship  is  lost,  the  captain 
must  refund  to  the  owners  of  the 
things  sold  or  used  the  price  they 
have  fetched,  and  for  those  pledged 
the  sum  for  which  they  were  held 
in  pledge,  retaining  in  like  manner 
the  freight  due  under  the  bill  of 
lading. 

These  two  cases  are  subject  to 
the  right  reserved  to  the  owners 
of  the  ship  to  abandon. 

Whenever  in  the  exercise  of  this 
right  there  results  a  loss  on  the 
part  of   those   whose   goods  have 


THE  LAW  OF  ITALY. 


6i;i 


•cose  iiiipiegate,  vendute  o  date  in 
pegno,  la  perdita  e  ripartita  per 
contribuzione  sul  valore  di  queste 
e  di  tutte  quelle  clie  sono  giunte 
alia  lore  destinazione,  o  che  sono 
state  salvate  dal  naufragio  pos- 
teriormente  agli  avvenimenti  di 
mare  che  hanno  reso  necessario  1' 
impiego,  la  vendita  o  il  pegno. 

576.  II  capitano  ha  <liritto  al 
nolo  delle  cose  gettate  in  mare  per 
-salvezza  comune,  e  che  sono  am- 
messe  a  contribuzione. 

577.  Non  e  dovuto  alcun  nolo 
per  le  cose  perdute  per  naufragio 
od  investimento,  rapite  dai  pirati 
o  prese  dai  nemici,  ed  il  capitano 
deve  restituire  il  nolo  che  gli  fosse 
state  antieipato,  se  non  vi  e  con- 
venzione  contraria. 

578.  Se  la  nave  e  le  cose  cari- 
cate  sono  riscattate  o  se  que-;te  sono 
salvate  dal  naufragio,  il  capitano 
ha  diritto  al  nolo  sino  al  Inogo 
della  presa  o  del  naufragio. 

Contribuendo  al  riscatto,  egli  ha 
diritto  al  nolo  intiero,  purehe  con- 
duca  le  cose  caricate  al  luogo  della 
loro  destinazione. 

La  contribuzione  per  il  riscatto 
si  fa  sul  prezzo  corrente  delle  cose 
caricate  nel  luogo  dello  scarica- 
mento  dedotte  le  speso,  e  sulla 
meta  della  nave  e  del  nolo. 

I  salarii  dei  marinai  sono  esenti 
dalla  contribuzione. 


been  used,  sold,  or  given  in 
pledge,  the  loss  shall  be  appor- 
tioned by  contribution  on  the  value 
of  those  goods,  ajid  of  all  that 
have  reached  their  destination,  or 
have  been  saved  from  shipwreck 
subsequently  to  the  accident  of 
navigation  which  has  rendered 
necessary  the  use,  the  sale,  or 
giving  in  pledge. 

576.  The  captain  has  a  right  to 
freight  for  things  jettisoned  for 
the  common  safety,  and  which  are 
admitted   to  contribution. 

577.  No  freight  is  due  for  things 
lost  in  shipwreck  or  stranding, 
pillaged  by  pirates,  or  captured  by 
the  enemy,  and  the  captain  must 
restore  any  freight  advanced  to 
him,  if  there  was  no  agreement 
to  the  contrary  (u) . 

578.  If  ship  and  cargo  are  ran- 
somed, or  if  they  are  saved  from 
the  shipwreck,  the  captain  can 
claim  freight  up  to  the  place  of 
capture  or  of  shipwreck. 

If  he  contributes  to  the  ransom, 
he  can  claim  full  freight  if  he 
carries  the  cargo  to  the  place  of 
destination. 

Contribution  to  ransom  is  made 
at  the  market  price  of  the  cargo 
at  the  port  of  discharge,  minus 
expenses,  and  on  the  half  of  the 
ship  and  freight. 

Seamen's  wages  are  e.xempt 
from  the  contribution. 


(?<)  A  towage  agreement  cannot  be  considered  a  charter-party,  but  is  a  special 
agreement  quite  distinct.  Sect.  577  of  the  Commercial  Code,  by  which  no  freight  is 
due  on  things  lost  through  Avreck,  cannot  be  applied  in  a  case  of  towage.  (Court  of 
Cassation  of  Turin,  27th  February,  1906  ;  Diritto  Maritimo,  1905,  241.) 


614 


APPENDIX  M. 


579.  Se  la  persona  cui  sono  di- 
rette  le  cose  caricate  ricusa  di  rice- 
verle,  il  capitano  puo,  coll'  auturiz- 
zazione  del  giudice,  farne  vendere 
la  quantita  occorrente  per  il  paga- 
mento  del  nolo  e  fare  il  deposito 
delle  rimanenti. 

Se  il  prezzo  ricavato  non  e 
sufficiente  al  pagamento,  egli 
conserva  il  regresso  contro  il 
car ica tore. 

580.  II  capitano  non  puo  ritenere 
le  cose  caricate  per  mancanza  di 
pagameuto  del  nolo. 

Egli  puo  nel  tempo  dello  seari- 
camento  domandare  che  siano 
depositate  presso  un  terzo  sino  al 
pagamento  del  nolo. 

581.  In  nessuu  caso  il  caricatore 
puo  domandare  diminuzione  del 
nolo. 

II  caricatore  non  puo  abbando- 
nare  per  il  nolo  le  cose  caricate 
diminuite  di  prezzo,  o  deteriorate 
per  vizio  proprio,  per  caso  f  ortuito 
o  per  forza  maggiore.  Tuttavia, 
86  vino,  olio,  od  altri  liquidi  siano 
colati,  le  botti  che  li  contenevano 
rimaste  vuote  o  quasi  vuote  pos- 
sono  essere  abbandonate  per  il 
nolo  ad  esse  corrispondente. 


579.  If  the  party  to  whom  the 
cargo  is  consigned  refuses  to  re- 
ceive it,  the  captain,  with  the 
authorization  of  the  court,  can  sell 
enough  to  meet  the  payment  of 
freight,  and  warehouse  the  re- 
mainder. 

If  the  price  fetched  be  not 
enough  to  cover  freight,  the  cap- 
tain can  have  recourse  against  the 
shipper. 

580.  The  captain  cannot  hold 
back  cargo  for  freight  unpaid. 

At  the  time  of  the  discharge  he 
can  demand  that  the  goods  be  de- 
posited in  the  hands  of  a  third 
party  till  freight  is  paid. 

581.  In  no  case  can  the  shipper 
demand  diminution  of  freight. 

The  shipper  may  not  abandon 
for  freight  any  cargo  diminished 
in  value,  or  deteriorated  by  vice 
propre,  by  accident,  or  by  vis 
major.  However,  if  wine,  oil, 
or  other  liquids  have  run  out,^ 
the  casks  which  held  them  being 
empty,  or  almost  empty,  can  be 
abandoned  for  the  freight  due 
upon  them. 


THE  LAW  OF  JAPAN.  615 


APPENDIX  N 


THE  LAW  OF  JAPAN. 


The   following  extracts  are   from   the  Japanese   Commercial   Code, 
which  came  into  force  on  the  16th  June,  1899. 


CHAPTER  IV. 

SEA    DAMAGE. 

Art.  G41.  General  average  includes  all  damage  and  expense  arising 
from  any  disposition  made  by  the  master  in  regard  to  the  ship  or  cargo 
to  save  both  from  a  common  danger. 

This  provision  does  not  affect  a  recourse  by  a  party  interest/ed 
against  any  person  from  whose  fault  the  danger  arose. 

Art.  642.  A  general  average  loss  must  be  borne  by  the  persons 
interested,  in  proportion  to  the  value  of  the  ship  or  the  cargo  saved 
thereby,  one  half  of  the  freight,  and  the  amount  of  the  general  average 
loss. 

Art.  643.  For  the  purpose  of  general  average  contribution,  the  value 
of  the  ship  ia  her  value  at  the  time  and  place  of  arrival,  the  value 
of  the  cargo  is  its  value  at  the  time  and  place  of  discharge ;  but  as  to  the 
cargo,  freight  and  exj^enses,  which  in  the  case  of  loss  need  not  be  paid, 
are  to  be  deducted  from  its  value. 

Art.  644.  The  pei-sons  bound  to  contribute  to  the  general  averag-e 
according  to  the  provisions  of  the  preceding  two  articles  are  not  respon- 
sible beyond  the  values  remaining  at  the  time  of  the  arrival  of  llie  ship, 
or  of  the  deliver^'  of  the  cargo . 

Art.  645.  The  following  things  are  not  bound  to  contribute  to 
general  average: — The  armament  of  the  ship,  the  wages  of  the 
mariners,  the  supplies  for  them  and  for  the  passengers,  and  thoir  cloth- 
ing; but,  nevertheless,  damag-e  to  any  such  thing  is  to  be  contributed 
for  by  the  other  parties  interested. 

Art.  646.  Damage  to  goods  laden  without  a  bill  of  lading  or  any 
documents  sufficient  for  assessing  the  value  of  the  cargo,  or  to  appur- 


til 6  APPENDIX  N. 

tenaiices  of  the  ship  not  included  in  the  invento)y  of  the  appurtenances, 
cannot  be  contributed  for. 

The  same  applies  to  goods  loaded  on  deck,  except  in  the  case  of  short 
coasting  voyages. 

The  persons  interested  in  such  cargo  are,  however,  not  exempted 
from  the  liability  to  contribute  to  the  general  average. 

Art.  647.  The  amount  of  the  damage  to  be  contributed  for  as  general 
averag-e  is  determined  with  reference  to  the  value  of  the  ship  at  the 
time  and  place  of  arrival,  or  of  the  cargo  at  the  time  and  place  of 
discharge,  but  in  respect  to  the  cargo  all  expenses  are  to  be  deducted 
whose  payment  has  been  made  unnecessary  by  the  loss  or  damage. 

The  provisions  of  Art.  338  apply  correspondingly  to  general 
average  (a) . 

Art.  648.  If  in  bills  of  lading  or  other  documents  sufficient  for  assess- 
in  o-  the  value  of  cargo,  the  value  of  cargo  is  stated  lower  than  its  actual 
value,  the  amount  of  damage  caused  to  such  cargo  is  to  he  determined 
with  reference  to  the  value  so  stated. 

If  the  value  of  cargo  is  stated  higher  than  the  actual  value,  the 
persons  interested  in  such  cargo  are  liable  for  general  average  in  pro- 
portion to  the  value  so  stated. 

These  provisions  apply  correspondingly  if  a  wilfully  false  statement 
has  been  made  as  to  any  circumstances  affecting  the  value  of  the  cargo. 

Art.  649.  If,  after  the  parties  interested  have  distributed  the  general 
averag-e  in  accordance  with  the  provisions  of  Art.  642,  the  owner  of 
the  ship,  its  appurtenances,  or  the  cargo,  recovers  the  whole  or  a  part 
thereof,  he  is  bound  to  pay  back  what  he  has  received  in  payment,  after 
deducting  therefrom  the  expense  of  salvage  and  the  amount  of  the 
damag-e  arising  from  a  partial  lo.ss  or  damage. 

Art.  650.  If,  in  the  case  of  collision  caused  by  the  fault  of  mariners 
of  both  ships,  it  cannot  be  determined  Avhich  party  was  more  in  fault, 
the  ownei-s  of  both  ships  shall  bear  the  loss  arising  by  such  collision 
equally. 

Art.  651.  An  obligation  arising  from  general  average  or  collision 
is  extino-uished  by  prescription  after  the  expiration  of  one  year. 

In  case  of  general  average  such  period  is  computed  from  the  com- 
pletion of  the  adjustment. 

Art.  652.  The  provisions  of  this  chapter  apply  correspondingly  to 
expenses  which  have  been  necessarily  incurred  because  the  ship  has 


(«)  With  regard  to  specie,  securities  and  other  valuables,  Art.  338  provides  that  a 
carrier  is  not  liable  for  damages  unless  the  sender,  at  the  time  when  he  entrusted  the 
same  to  the  carrier  for  transportation,  made  a  clear  declaration  of  their  nature  and 
value. 


THE  LA.W  OF  JAPAN.  617 

"been  detained  in  the  port  of  departure,  or  in  the  course  of  the  voyag-e, 
by  any  vis  major. 

CHAPTf^R  11. 

SECTION  I. — The  Master. 

Art.  565.  During-  the  vojag-e  the  master  must  take  such  measures 
in  respect  of  the  cargo  as  are  for  the  best  interest  of  all  the  parties 
interested. 

Any  party  interested  may  free  himself  from  an  oblig-ation  arising  in 
respect  of  his  goods  from  an  act  of  the  master,  by  abandoning  such 
goods  to  the  creditor,  unless  such  party  i^  himself  in  fault. 

Art.  568.  The  following  acts  can  be  done  by  the  master  only  to  pay 
the  exj)enses  of  repairs  of  the  ship,  assistance  in  case  of  distress,  or 
salvage  or  expenses  necessary  to  the  prosecution  of  the  voyage:  — 

(1)  The  mortgage  of  the  ship. 

(2)  Borrowing  money. 

(3)  The  sale  or  pledge  of  the  whole  or  a  part  uf  the  cargo, 

except  in  the  case  mentioned  in  Art.  565  (1). 

In  the  case  of  a  sale  or  a  pledge  of  the  cargo  by  the  master,  the 
.amount  of  damages  to  be  paid  is  determined  by  its  value  at  the  port 
of  discharg-e  at  the  time  when  it  ought  to  have  arrived,  less  all  expenses 
saved  thereby. 

Art.  570.  If  the  ship  becomes  irreparable  outside  of  her  home  port, 
the  master  may  sell  her  by  public  auction  by  permission  of  the  maritime 
authorities. 

Art.  571.  In  the  following  cases  a  ship  is  deemed  to  be  irreparable:  — 

(1)  If  the  repairs  cannot  be  made  at  the  place  where  the  ship 

is,  and  the  ship  cannot  be  taken  to  a  place  where  they 
could  be  made. 

(2)  If  the  cost  of  the  repairs  would  lie  luoro  than  tlireo-fuurths 

of  the  value  of  the  shi]). 

The  value  as  specified  under  No.  2  is,  in  case  the  ship  is  damaged 
pending  the  voyage,  the  value  which  she  had  at  the  conunencement  of 
the  voyage,  in  other  case  her  value  before  the  happening  of  the  damage. 

Art.  572.  If  necessary  for  the  prosecution  of  the  voyage,  the  master 
may  use  the  cargo  for  the  purposes  of  the  voyage.  In  such  case  the  pro- 
visions of  Art.  568  (2)  apply  correspondingly. 


618  APPENDIX  N. 


CHAPTER    III. 

CARRIAGE    BY    SEA. 

SECTION  I. — Carriage  of  Goods. 

Art.  592.  The  shipowuer  cannot  even  by  an  express  ag-reement  be 
exempted  from  liability  for  damage  caused  by  his  own  fault,  or  by  the 
bad  faith  or  the  gross  fault  of  a  mariner  or  of  any  other  person  em- 
ployed, or  by  the  unseaworthiness  of  the  ship. 

Art.  598.  Before  the  voyage  has  been  begun,  the  charterer  may 
terminate  the  contract  on  paying  one-half  of  the  freight. 

If  the  charter  includes  a  return  voyag-e,  and  the  charterer  terminates 
the  contract  before  the  beg-inning  of  the  return  voyage,  he  must  pay 
two-thirds  of  the  freight.  The  same  applies,  if  the  ship  is  to  come  from 
another  port  to  the  port  of  loading*,  and  the  charterer  terminates  the 
contract  before  the  departure  of  the  ship  from  the  port  of  loading. 

If  the  charterer  terminates  the  contract  under  the  provisions  of  the 
foregoing  two  paragraphs  after  the  whole  or  a  part  of  the  goods  have 
been  loaded,  he  must  bear  the  expenses  of  their  loading  and  dis- 
charging. 

If  the  charterer  does  not  load  the  g'oods  within  the  time  lixed  for 
doing  so,  he  is  deemed  to  have  terminated  the  contract. 

Art.  599.  Even  though  the  contract  is  terminated  under  the  pro- 
visions of  the  preceding  article,  the  charterer  is  not  exempted  from  his 
obligation  to  pay  incidental  costs  and  disbursements. 

In  the  case  of  Art.  598  (2),  the  charterer  must,  in  addition,  pay  any 
amount  to  be  borne  in  proportion  to  the  value  of  the  goods  for  general 
average,  assistance  in  distress,  or  salvage. 

Art.  IJOU.  After  the  voyage  has  begun,  the  charterer  may  terminate 
the  contract  only  on  condition  that  besides  paying  full  freight,  he  per- 
forms the  obligations  provided  for  in  Art.  606  (1  j,  and  makes  compensa- 
tion for  all  damage  arising  from  tlie  discharging  of  the  goods  or  gives 
proper  security. 

Art.  606.  ^^'llen  the  consignee  has  received  the  goods,  he  is  bound 
to  pay,  according  to  the  contract  of  carriage  or  to  the  tenor  of  the  bill 
of  lading,  the  freight,  incidental  expenses,  disbursements,  and  any 
amount  to  be  borne  in  proportion  to  the  value  of  the  goods  for  general 
averag-e,  assistance  in  distress  or  salvage. 

The  master  must  not  deliver  the  goods  excei)t  on  the  payment  of 
the  aforesaid  sums. 


THE  LAW  OF  JAPAN.  019 

Art.  607.  If  the  consig-nee  fails  to  receive  the  goods,  the  master  may 
deposit  them.  In  such  case  he  must  without  delay  give  notice  thereof 
to  the  consignee. 

If  the  consignee  cannot  be  ascertained,  or  if  he  refuses  to  receive  the 
goods,  the  master  must  deposit  them.  In  such  case  he  must  without 
delay  give  notice  thereof  to  the  charterer  or  shipper. 

Art.  610.  A  shipowner,  in  order  to  obtain  payment  of  the  amount 
mentioned  in  Art.  606  (1),  may  by  the  permission  of  the  Court  sell  the 
goods  by  public  auction. 

The  shipowner  may  exercise  this  right  against  the  goods  even  after 
the  master  ha.s  delivered  them  to  the  consignee;  but  this  provision 
does  not  apply  if  two  weeks  have  elapsed  since  the  day  of  delivery,  or  if 
a  third  person  has  acquired  the  possession  of  the  g-oods. 

Art.  611.  If  the  shipowner  does  not  exercise  the  rig-ht  mentioned  in 
the  preceding  article,  he  loses  his  claim  against  the  charterer  or 
shipper,  provided  that  the  latter  persons  must  make  compensation 
80  far  as  they  have  been  actually  enriched. 

Art.  613.  If  the  whole  ship  is  chartered,  the  contract  of  carriage 
is  terminated  in  the  following  cases: — 

(1)  For  the  cause  mentioned  in  Art.   587   (1)  (b). 

(2)  If  the  goods  are  lost  by  vis  major. 

If  the  cause  mentioned  in  Art.  587  (1)  (b)  occurs  during  the  voyage, 
the  charterer  must  pay  freight  in  proportion  to  the  part  of  the  carriage 
performed,  but  not  to  exceed  the  value  of  the  goods. 

Art.  614.  If  the  voyage  or  the  carriage  becomes  unlawful  under 
any  law  or  regulation,  or  if  by  reason  of  any  vis  major  the  object  of 
the  contract  can  no  longer  be  accomplished,  either  party  may  terminate 
the  contract. 

If  such  cause  occurs  after  the  commencement  of  the  voyage,  and  in 
consequence  thereof  the  contract  is  terminated,  the  charterer  must  pay 
freight  in  proportion  to  the  part  of  the  carriage  performed. 

Art.  615.  If  the  causes  mentioned  in  Arts.  613  (1),  No.  2,  and  614  (1) 
affect  a  part  of  the  cargo  only,  the  charterer  may  load  other  goods  in  its 
stead,  so  far  as  the  obligations  of  the  shipowner  are  not  thereby  made 
more  onerous. 

If  the  charterer  elects  to  exercise  this  right,  he  must  discharge  or 
load  the  goods  without  delay.  If  he  neglects  to  do  so,  he  must  pay  full 
freight. 


(i)  /.'•.,  if  the  ship  is  lost  or  captured,  or  becomes  irreparable. 


620  APPENDIX  N. 

Art.  616.  The  provisions  of  Arts.  613  and  614  apply  correspond- 
ingly to  a  contract  of  carriage  relating  to  a  part  of  the  ship  or  to 
particular  goods. 

Even  though  the  causes  mentioned  in  Arts.  613  (1),  No.  2,  and 
614  (1)  a£fect  only  a  part  of  the  goods,  the  charterer  or  shipper  may 
terminate  the  contract  on  payment  of  the  full  freight. 

Art.  617.   The  shipowner  may  claim  the  full  freight:  — 

(1)  If  the  master  has  sold  or  pledged  the  goods  according  to 

the  provisions  of  Art.  568  (1). 

(2)  If  he  has  used  them  for  the  purpose  of  the  voyage  according 

to  the  provision  of  Art.  572. 

(3)  If  he  has  disposed  of  them  according  to  the  provisions  of 

Art.  641. 


THE  LAW  OF  MEXICO.  621 


APPENDIX  O. 


THE  LAW  OF  MEXICO. 

The  following  extracts  are  taken  from  the  Commercial  Code  of 
Mexico,  which  became  law  on  the  15th  September,  1889,  and  came  into 
force  on  the  1st  January,  1890:  — 

TITLE  FOURTH. 

01'"  THE  RISKS,   DAMAGES,  AND  ACCIDENTS  OF  MARITIME  COMMERCE. 
CHAPTER  I.— OF  AVERAGE. 

Art.  881.  For  the  purposes  of  this  Code,  averages  comprise:  — 

(1)  All  extraordinary  or  accidental  expenses  incurred  during 

the  voyage  for  the  preservation  of  the  ship  or  cargo, 
together  or  separately. 

(2)  Every  injury  or  deterioration  sustained  by  the  ship  from  the 

time  when  she  sails  from  the  port  of  departure  until  she 
arrives  and  anchors  in  the  port  of  destination,  and  all 
damage  sustained  by  the  merchandise  from  the  time  of 
loading  in  the  j)ort  of  shipment  until  it  is  discharged  at 
the  port  of  delivery. 

Art.  882.  Ordinary  expenses  of  navigation,  such  as  charges  for 
pilotage  on  the  coasts  and  in  entering  port,  expenses  of  towage, 
launches,  anchoring  and  visitation,  charges  of  sanitary  authorities, 
quarantine  and  isolation,  and  other  port  charg-es,  the  expenses  of 
lighterage  and  discharging  until  the  goods  are  deposited  on  the  quay, 
and  all  other  usual  expen.ses  of  navigation,  are  considered  ordinary 
expenses  to  be  borne  by  the  shipowner,  unless  there  be  an  express 
agreement  to  the  contrary. 

Art.  883.  Averages  are:  — 

(1)  Simple  or  particular. 

(2)  General  or  common. 

Art.  884.  In  general,  simple  or  particular  average  compri-ses  all 
those  expenses  and  losses  incurred  or  sustained  by  the  ship  or  its  cargo, 


•622  APPENDIX  O. 

but  which  did  uot  enure  for  the  common  benefit  and  advantage  of  all 
the  parties  interested  in  the  ship  and  her  cargo,  and  especially  the 
folio  wing:  — 

(1)  Loss  or  damage  sustained  by  the  cargo  from  the  time  of 

loading  until  its  discharge,  whether  caused  by  an  inherent 
defect  of  the  thing,  or  by  an  accident  of  the  sea,  or  by  force 
majeure,  and  the  expenses  incurred  in  order  to  avert  or 
repair  the  same. 

(2)  Damage  sustained  and  expenses  incurred  bj  the  ship,  as 

reg-ards  its  hull,  apparel,  equipment,  and  stores,  from  the 
same  caases,  from  the  time  when  she  breaks  ground  in  the 
port  of  departure  until  she  is  moored  and  anchored  in 
her  port  of  destination. 

(3)  Loss  or  damage  sustained  by  the  goods  stowed  on  deck, 

except  in  the  coasting-  trade,  if  the  maritime  laws  permit 
this  mode  of  loading. 

(4)  The  wages  and  keep  of  the  crew  in  case  of  detention  or  em- 

bargo due  to  a  lawful  order  or  to  force  majeure,  if  the 
freight  was  agreed  to  be  a  sum  fixed  for  the  voyage . 

(5)  The  expenses  of  a  port  of  refuge,  into  which  the  ship  has 

put  for  repairs  or  provisions. 

(6)  The  loss  on  the  g-oods  sold  by  the  captain  at  a  port  of 

refuge  for  the  payment  of  provisions  and  the  preserva- 
tion of  the  crew,  or  to  provide  any  other  necessaries  for 
the  ship,  in  which  case  the  indemnity  shall  be  charged 
to  the  ship. 

(7)  The  keep  and  wages  of  the  crew  during  a  quarantine. 

(8)  Damage  sufi^ered  by  the  shij)  or  cargo  through  an  accidental 

or  inevitable  collision  with  another  vessel.  If  the  casualty 
has  been  caused  b}'  the  fault  or  want  of  care  of  the  cap- 
tain, he  is  re.sponsibie  for  the  whole  of  the  damage. 

(9)  Any  damage  sustained  by  the  cargo  through  the  fault,  want 

of  care,  or  barratry  of  the  captain  or  crew,  without  pre- 
judice to  the  right  of  the  owner  to  the  corresponding 
indemnity  against  the  captain,  the  ship,  and  the  freight. 

Art.  885.  The  owner  of  the  thing  which  gives  rise  to  the  expense  or 
sustains  the  damage  shall  bear  simple  or  particular  averages. 

Art.  886.  In  general,  all  those  losses  and  expenses  which  are 
deliberately  caused  or  incurred  in  order  to  save  the  ship  or  cargo,  or 
both  together,  from  a  known  and  real  risk,  are  guneral  or  common 
average,  and  in  particular  the  following:  — 

(1)   Effects  or  money  given  for  the  ransom  of  the  ship  or  cargo 
seized  by  enemies,  corsairs,  or  pirates,  and  the  provisions, 


THE  LAW  OF  MEXICO.  H23 

wages,  and  expenses  of  the  captured  ship  while  the 
ransom  is  being-  arranged. 

(2)  Effects  jettisoned  in  order  to  lighten  the  ship,  wlicther  they 

belong  to  the  cargo,  the  ship,  or  the  crew,  as  also  the 
damage  caused  by  the  jettison  to  the  effects  whicli  re- 
main on  board. 

(3)  Cables  and  masts  broken  or  cut  and  anchors  and  chains 

slipped,  in  order  to  save  the  cargo  or  ship,  or  both 
together. 

(4)  Expenses  of  lightening  a  ship,  or  transhipping  a  portion 

of  the  cargo  in  order  to  lighten  the  ship  and  enable  it  to 
reach  a  port  or  roadstead,  and  the  damage  which  may 
thereby  result  to  the  goods  lightened  or  transhipped. 

(5)  Damage    caused    to    cargo    by   an    opening    made    in    the 

ship  for  the  purpose  of  letting  out  water  and  preventing 
her  from  sinking. 

(6)  Expenses  incurred  to  refloat  a  ship  voluntarily  stranded  for 

the  purpose  of  saving  her. 

(7)  The  damage  caused  to  the  ship  through  its  being  necessary 

to  open,  make  holes  in,  or  break  her  up  to  save  the  cargo. 

(8)  The   cost  of  restoring  to  health  and   the  keep   of  sailors 

wounded  or  maimed  in  defending  or  saving  the  ship. 

(9)  The  wages  of  any  member  of  the  crew  detained  as  a  hostage 

by  enemies,  corsairs,  or  pirates,  as  also  the  necessary  ex- 
penses incurred  by  him  in  prison,  until  he  has  returned  to 
the  ship,  or  to  his  domicile,  if  he  so  prefers. 

(10)  The  wages  and  provisions  for  the  crew  of  a  ship  freighted 

by  the  month,  during  the  time  of  an  embargo  or  deten- 
tion resulting-  from  force  majeure,  or  from  an  order  of 
the  Government,  or  for  the  purpose  of  repairing  damage 
caused  to  the  ship  for  the  common  benefit. 

(11)  The  loss  in  value  of  goods  sold  at  a  port  of  refuge  in  order 

to  repair  general  average  damage  to  the  ship. 

(12)  The  expenses  of  the  liquidation  of  the  average. 

Art.  887.  All  who  are  interested  in  the  ship  and  the  cargo  on  board, 
at  the  time  when  an  average  loss  occiu's,  must  contribute  to  make 
good  the  amount  of  the  general  or  common  average. 

Art.  888.  For  incurring  expenses  and  causing  damage  constituting 
general  average,  there  must  be  a  resolution  of  the  captain,  taken  after 
previous  consultation  Avitli  the  pilot  and  other  officers  of  the  ship,  and 
after  hearing  the  parties  interested  in  the  cargo,  if  they  are  present. 

If  the  said  parties  object,  and  the  captain  and  officers,  or  a  majority 
of  them,  or  the  captain,  dissenting  from  the  opiiiion  of  the  majority, 
-should  deem  it  necessary  to  take  certain  measures,  they  may  take  such 


624  APPENDIX  0. 

measures  on  tlieir  own  responsibility,  without  prejudice  to  the  riglit 
of  the  shippers  to  enforce  their  claims  against  the  captain  before  the 
judgx)  or  competent  tribunal,  if  they  can  prove  that  he  acted  fraudu- 
lently, unskilfully,  or  negligently. 

If  the  parties  interested  in  the  cargo,  being  on  board,  are  not  heard, 
they  are  not  bound  to  contribute  to  the  general  average,  for  which,  in 
such  case,  the  captain  is  responsible,  unless  the  urgency  of  the  case  was 
such  that  there  was  not  the  time  necessary  for  a  previous  consultation. 

Art.  889.  The  adoption  of  a  resolution  to  make  a  .sacrifice  consti- 
tuting general  average,  must  nece.ssarily  be  entered  in  the  logbook,  with 
a  statement  of  the  gi'ounds  on  which  it  was  taken,  the  votes  to  the  con- 
trary and  grounds  of  dissent,  if  any,  and  the  irresistible  and  urgent 
causes  which  prevailed  with  the  captain  if  he  acted  on  his  own  respon- 
sibility. 

In  the  former  case,  the  entry  shall  be  signed  by  all  the  j^ersons 
present  who  can  do  so,  if  possible,  before  proceeding  with  the  execu- 
tion, otherwise  at  the  first  favoiu-able  opportunity.  In  the  second  case, 
it  must  be  signed  by  the  caj)tain  and  ofiicers  of  the  ship.  In  the  entry, 
after  setting  out  the  resolution,  all  the  articles  thrown  overboard  shall 
be  specified  in  detail,  and  mention  shall  be  made  of  the  damage  caused 
to  the  articles  which  remain  in  the  ship.  The  captain  is  obliged  to 
deliver  a  copy  of  this  entry  to  the  judicial  maritime  authority  of  the 
first  port  into  which  he  puts,  within  twenty-four  hours  of  his  arrival 
there,  and  to  certify  it  upon  oath. 

Art.  890.  The  captain  shall  superintend  the  jettison  and  cause  the 
articles  to  be  jettisoned  in  the  following  order:  — 

(1)  Those  which  are  on  deck,  commencing  with  those   which 

hamper  the  navigation  or  are  dangerous  to  the  ship, 
taking  first,  if  this  be  possible,  the  articles  which  are 
heaviest  and  of  the  least  use  and  value. 

(2)  Those  which  are  below  the  ujiper  deck,  always  commencing 

with  those  of  the  gi'eatest  weight  and  least  value,  to  the 
quantity  and  number  which  may  be  absolutely  necessary. 

Art.  891.  In  order  that  the  owners  of  the  articles  jettisoned  may 
have  the  benefit  of  the  general  average  and  be  entitled  to  an  indemnity, 
it  is  necessary,  as  regards  the  cargo,  that  its  existence  on  board  be 
proved  by  means  of  the  bill  of  lading;  and  as  regards  articles  belong- 
ing to  the  ship,  that  the  proof  be  given  by  means  of  the  inventory 
drawn  up  before  the  departure,  in  conformity  with  the  first  paragraph 
of  Art.  686. 

Art.  892.  If  in  lightening  the  ship  on  account  of  a  storm,  to  facilitate 
her  entering  a  port  or  roadstead,  part  of  the  cargo  is  transferi'ied  to 
launches  or  boats  and  is  lost,  the  owner  of  this  part  shall  be  entitled  to 


THE  LAW  OF  MEXICO.  625 

an  indemnity  as  though  the  loss  had  been  caused  by  general  avei-age, 
its  amount  being  apportioned  over  the  whole  value  of  the  ship  and  tho 
cargo  from  which  it  proceeds. 

If,  on  the  other  hand,  the  goods  transhipped  are  saved  and  the  ship 
is  lost,  no  contribution  can  be  demanded  from  the  goods  saved. 

Art.  893.  If,  as  a  measure  necessary  to  restrict  a  fire  in  a  port, 
roadstead,  creek,  or  bay,  it  is  decided  to  sink  a  vessel,  the  loss  thereby 
occasioned  shall  be  considered  general  average,  to  which  the  ships  saved 
shall  contribute. 

CHAPTER   II. — OF   PUTTING   INTO  A   PORT   OF   REFUGE. 

Art.  894.  If  the  captain,  during  the  voyage,  believes  that  the  ship 
cannot  continue  the  voyage  to  her  port  of  destination  through  want  of 
victuals,  reasonable  fear  of  embargo,  corsairs,  or  pirates,  or  any  accident 
of  the  sea  which  makes  her  unseaworthy,  he  shall  assemble  the  officers 
and  summon  the  parties  interested  in  the  cargo  who  may  be  present, 
who  arc  entitled  to  be  present  at  the  consultation,  without  the  right  to 
vote:  and  if,  after  the  circvimstances  of  the  case  have  been  considered, 
the  belief  is  considered  well-founded,  the  decision  shall  be  taken  to  put 
into  the  nearest  and  most  convenient  port,  and  the  proper  entry  shall 
be  made  in  the  logbook  and  signed  by  all. 

The  captain  shall  have  the  decisive  vote,  and  the  parties  interested 
in  the  cargo  may  make  such  complaints  and  protests  as  they  think 
proper,  which  shall  be  inserted  in  the  minute,  so  that  use  may  be  made 
of  them  by  the  protesting  parties  if  they  should  so  desire.. 

Art.  895.  The  expenses  of  putting  into  the  port  of  refuge  shall 
always  be  on  account  of  the  shipowner  or  charterer,  Avho,  however, 
shall  not  be  responsible  for  the  injuries  which  may  result  to  the 
shippers  in  consequence  of  putting  in,  if  this  measure  be  justifiable. 

Art.  896.  Putting  into  the  port  of  refuge  shall  not  be  considered 
justifiable  in  the  following  cases: — ■ 

(1)  If  the  cause  of  the  want  of  victuals  is  that  tlie  quantity  of 
,  provisions    necessary  for    the  voyage    according    to    use 
[■:    .  and  custom  has  not  been  taken  on  board,  or  if  the  pro- 
visions have  been  rendered  useless  or  lost  through  bad 
stowage,  or  want  of  care  in  keeping  them. 

(2)  If  the  risk  of  enemies,   corsairs,  or    pirates    is    not  well 

known,  manifest,  and  founded  on  positive  facts  capable 
of  proof. 

(3)  If  the  bad  condition  of  the  ship  arises  from  the  fact  that  she 

has  not  been  properly  repaired,  fitted  out,  and  equipped 
for  the  voyage,  or  from  unskilful  handling  by  the  captain. 

L,  '  SS 


026  APPENDIX  O. 

(4)  Whenever  the  average  results  from  the  fraud,  negligence, 
imprudence,  or  want  of  skill  of  the  captain. 

In  these  cases  the  shipowner  and  the  captain  are  jointly  liable  for  the 
losses  which  the  shippers  may  suffer  in  consequence  of  putting  into  the 
port. 

Art.  897.  If  in  order  to  repair  the  ship,  or  in  consequence  of  the 
cargo  being  in  danger,  it  is  necessary  to  discharge  the  cargo,  the  captain 
must  ask  the  authorization  of  the  competent  judge,  and  not  proceed' 
with  the  discharg-e  until  he  has  communicated  with  the  interested  party, 
or  the  representative  of  the  cargo,  if  there  be  any. 

Li  a  foreign  port,  the  right  to  authorize  the  discharge  appertains  to 
the  Mexican  Consul,  if  there  be  one. 

In  the  former  case,  the  expenses  must  be  borne  by  the  shipowner, 
and  in  the  second,  by  the  owners  of  the  goods  for  whose  benefit  the 
operation  w-as  undertaken. 

If  the  diseharg-e  was  undertaken  for  both  reasons,  the  expenses  shall 
be  divided  in  proportion  to  the  values  of  the  ship  and  the  cargo. 

Art.  898.  The  custody  and  preservation  of  the  discharged  cargo 
shall  be  at  the  expense  of  the  caj)tain,  who  is  responsible  for  it,  except 
in  cases  of  force  majeure. 

Art.  899.  If  the  whole  or  a  portion  of  the  cargo  appears  damaged, 
or  there  be  imminent  danger  of  its  being  damaged,  the  captain  may 
apply  to  the  competent  judge  or  to  the  consul,  as  the  case  may  be,  to 
authorize  the  sale  of  the  whole  or  part  of  the  said  cargo,  and  the  com- 
petent authority  shall  authorize  the  sale  after  preliminary  proof  and 
declaration  of  experts,  advertisements,  and  other  formalities  prescribed 
in  such  cases,  and  an  entry  in  the  logbook,  in  conformity  with  the  pro- 
visions of  Art.  698. 

The  captain  shall  justify  the  legality  of  his  proceeding,  under  penalty 
of  being  liable  to  the  shipper  for  the  difference  between  the  proceeds 
of  the  sale  and  the  price  which  the  goods  Avould  have  realised,  if  they 
had  arrived  in  good  condition  at  their  port  of  destination. 

Art.  900.  The  captain  shall  be  liable  for  the  losses  occasioned  by 
his  delay,  if  he  does  not  continue  the  voyage  when  the  reason  for  putting 
into  the  port  of  refuge  ceases  to  operate.  If  the  reason  therefor  was 
the  fear  of  enemies,  corsairs,  or  pirates,  the  departure  should  be  pre- 
ceded by  a  consultation,  and  a  resolution  taken  at  a  meeting  of  the 
officers  of  the  ship  and  the  parties  interested  in  the  cargo  who  may  be 
present,  in  conformity  with  the  provisions  of  Art.  894. 


THE  LAW  OF  MEXICO.  627 


I 


TITLE  FIFTH. 

OF    THE    PROOF    AND    LIQUIDATION    OF    AVERAGE. 

CHAPTER  I.— PROVISIONS  common  to  all  classes  of  average. 

Art.  921.  Those  interested  in  the  proof  and  liquidation  of  averages 
can  always  make  agreements  and  undertake  mutual  obligations,  with 
reference  to  the  responsibility  for  and  the  liquidation  and  payment  of 
the  said  averages. 

In  default  of  agreement  the  following  rules  shall  be  observed: — 

(1)  The  proof  of  the  average  shall  be  made  at  the  port  where 

the  repairs,  if  any  are  necessary,  are  made,  or  at  the  port 
of  discharge. 

(2)  The  adjustment  shall  be  made  at  the  port  of  discharge,  if 

it  be  Mexican. 

(3)  If   the  average    has  occurred    beyond    Mexican   territorial 

waters,  or  if  the  cargo  has  been  sold  in  a  foreign  port  of 
refuge,  the  adjustment  shall  be  made  at  the  port 
of  refuge. 

(4)  If  the  average  has  occurred  near  the  port  of  destination, 

provided  that  it  is  possible  to  reach  the  same,  the  steps 
referred  to  in  Rules  1  and  2  shall  bo  taken  there. 

Art.  922.  Both  in  the  case  of  the  adjiLstment  of  averages  being 
privately  effected  in  virtue  of  an  agTeement,  and  in  tlio  case  of  the 
intervention  of  judicial  authority  on  the  demand  of  any  of  the  inte- 
rested parties  who  refuses  his  consent,  all  the  interested  parties  shall, 
be  cited  and  heard  if  they  have  not  renounced  this  right. 

When  they  do  not  attend,  or  have  no  lawful  representative,  the 
adjustment  shall  be  effected  by  the  consul  in  a  foreign  port,  and 
where  there  is  no  consul,  by  the  competent  judge,  according  to  the  law'S 
■of  the  country  and  on  behalf  of  the  person  who  ought  to  undertake  it. 

When  the  representative  is  a.  person  known  in  the  place  where  the 
adjustment  is  to  be  made,  he  shall  be  allowed  to  intervene,  and  liis 
intervention  shall  be  legally  effective,  even  though  he  may  only  have 
been  authorized  by  a,  letter  from  the  shipowner,  shipper,  or  insurer. 

Art.  923.  Claims  in  connection  with  averages  shall  not  be  admissible 
if  they  do  not  exceed  five  per  cent,  of  the  claimant's  interest  in  the 
ship  or  the  cargo,  if  the  average  be  general,  and  one  per  cent,  of  the 
thing  damaged,  if  the  average  be  particular,  deducting  in  both  cases 
the  expenses  of  valuation,  unless  there  be  an  agreement  to  the  con- 
trary. 

s  s  2 


628  APPENDIX  O. 

Art.  924.  Damages,  averages,  bottomry  loans  and  premiums,  and 
any  other  losses  whatsoever,  shall  not  bear  interest  on  account  of  delay, 
until  after  the  expiration  of  three  days,  counting  from  the  day  on  which 
the  adjustment  was  finished  and  communicated  to  all  the  parties  inte- 
rested in  the  ship  and  in  the  cargo,  conjointl}'  or  separately. 

Art.  925.  If,  in  consequence  of  one  or  more  accidents  of  the  sea,  the 
ship  or  the  cargo,  or  both  together,  have  sustained  both  particular  and 
general  average  on  the  same  voyage,  the  expenses  and  losses  belonging 
to  each  average  shall  be  determined  separately,  in  the  port  Avhere  the 
repairs  are  made,  or  where  the  goods  are  discharged,  sold,  or 
disposed  of. 

For  this  purpose  the  captain  must  require  the  expert  valuers,  and 
the  shipwrights  who  e.Kecute  the  repairs,  as  also  the  persons  who  value 
the  goods  or  take  part  in  their  discharge,  preservation,  sale,  or  disposal, 
to  set  out  in  their  estimates,  valuations,  and  accounts,  separately  and 
exactly,  the  losses  and  expenses  appertaining  to  each  average,  and 
as  regards  each  average,  the  losses  and  expenses  falling  on  the  ship 
and  the  cargo,  stating  also  distinctly  whether  or  not  there  are  losses 
caused  by  an  inherent  defect  of  the  thing  and  not  by  an  accident  of  the 
sea;  and  if  there  be  expenses  common  to  several  averag-es  and  to  the 
ship  and  her  cargo,  they  must  calculate  the  amount  which  appertains 
to  each  and  state  it  distinctly. 

CHAPTER  II. — OF  THE  ADJUSTMEXT  OF  GENERAL  AVER.\GES. 

Art.  926.  If  the  interested  j)arties  have  so  agreed,  the  adjustment 
and  distribution  of  general  average  shall,  at  the  instance  of  the  captain, 
be  made  privately. 

For  this  purpose,  within  forty -eight  hours  from  the  arrival  of  the 
ship  in  port,  the  captain  shall  call  all  those  interested  together,  so  that 
they  may  decide  whether  the  arrangement  or  adjustment  of  the  general 
average  shall  be  made  by  experts  and  liquidators  appointed  by  them- 
selves, in  which  case,  if  the  interested  parties  are  all  agreed,  it  shall  be 
so  effected. 

If  the  interested  parties  cannot  agTee,  the  captain  shall  apply  to  the 
competent  judge,  i.e.,  to  the  judge  of  the  port  in  which  such  proceed- 
ings ought  to  be  taken,  in  conformity  with  the  provisions  of  this  Code, 
or  the  Mexican  Consul,  if  there  be  one,  and  if  there  be  none,  to  the 
local  authority,  when  the  proceedings  have  to  be  taken  in  a  foreign 
port. 

Art.  927.  If  the  captain  does  not  act  in  accordance  with  the  pro- 
visions of  the  preceding  article,  the  shipowner  or  the  shippers  can 
procure  the  adjustment  to  be  made,  without  prejudice  to  their  right  to 
claim  indemnification  from  him. 


THE  LAW  OF  MEXICO.  629 

Art.  928.  The  experts  appointed  by  the  iatore.sted  parties  or  by 
the  judge  shall,  after  accepting  the  appointment,  proceed  to  the 
examination  of  the  ship  and  of  the  repair.?  which  she  needs,  and  to 
make  an  estimate  of  the  co.3t  of  the  said  repairs,  distinguishing  the 
losses  and  damage  resulting  from  the  average  from  those  which  arise 
from  an  inherent  defect  of  the  things. 

The  experts  shall  also  state  whether  the  repairs  can  be  immediately 
executed,  or  whether  it  is  necessarj^  to  discharge  the  ship  in  order  to 
ascertain  her  condition  and  repair  her. 

As  regards  the  goods,  if  the  damage  is  externally  visible,  they  must 
proceed  to  ascertain  it  before  the  delivery.  If  the  damage  is  not  appa- 
rent at  the  time  of  discharge,  the  examination  may  take  place  after 
the  delivery,  provided  it  be  effected  within  twenty-four  hours  after  the 
discharge,  and  without  prejudice  to  the  other  proofs  Avhich  the  experts 
may  deem  desirable. 

Art.  929.  The  valuation  of  the  things  which  have  to  contribute  to 
general  average,  and  of  those  which  constitute  the  average,  shall  be 
subject  to  the  following  rules:  — 

(1)  The  goods  saved,  which  have  to  contribute  to  the  general 

average,  shall  be  vakted  at  the  market  price  at  the  port 
of  discharge,  deducting  the  freight,  customs  duties,  and 
expenses  of  unloading,  according  to  the  result  of  the 
actual  inspection  of  the  said  goods ;  the  bills  of  lading,  in 
the  absence  of  an  agreement  to  the  contrarv,  are  not  to 
be  taken  into  account. 

(2)  If  the  adjustment  has  to  be  made  in  the  port  of  departure, 

the  value  of  the  goods  laden  on  board  shall  be  taken  to 
-  be  the  purchase  price,  plus  the  expenses  of  loading,  ex- 

cluding the  insurance  premium. 

(3)  If  the  goods  are  damaged,  they  shall  be  valued  at  their 

actual  value. 

(4)  If  the  voyage  has  been  broken  tip,  and  the  goods  jiaving 

been  sold  in  a  foreign  country,  tliG  average  cannot  thus 
be  adjtisted,  the  contributing  value  shall  be  taken  to  be 
the  value  of  the  goods  at  the  port  of  arrival,  or  the  not 
proceeds  of  their  sale. 

(5)  The  lost  goods  which  constitute  the  general  average  shall 

be  estimated  at  the  value  which  goods  of  the  same  rate- 
gory  have  at  the  port  of  discharge,  jDrovidcd  that  their 
nature  and  qtiality  are  sijecified  in  the  bills  of  lading, 
and  if  not,  according-  to  the  value  shown  in  the  invoices 
of  purchase  made  out  in  the  port  of  loading,  plus  the 
expenses  incurred  subseqtientl}'  and  the  freight. 


630  APPENDIX  o. 

(6)  Masts  cut  away,  sails,  cables,  aud  otlier  tackle  cut  or  aban- 

doned for  the  purpose  of  saving  the  ship,  shall  be  valued 
at  their  market  price,  deducting-  one-third  for  the  differ- 
ence between  new  and  old. 

This  deduction  shall  not  be  made  in  respect  of  anchors 
and  chains. 

(7)  The  ship  shall  be  valued  according  to  her  actual  value  in 

the  state  in  Avhich  she  is. 

(8)  The  freight  shall  contribute  on  half  of  its  amount. 

Art.  930.  Goods  loaded  on  the  upper  deck  shall,  if  saved,  contri- 
bute to  general  average,  but  if  jettisoned  for  the  common  safety,  shall 
not  give  a  right  to  indemnification,  except  when,  on  coasting  voyages, 
the  maritime  laws  allow  them  to  be  stowed  in  this  manner. 

The  same  rule  shall  apph'  to  goods  on  board  which  are  not  included 
in  the  bills  of  lading  or  cargo-lists,  as  the  case  may  be. 

In  every  case,  the  shipowner  and  the  captain  shall  be  liable  to  the 
shippers  for  the  losses  resulting  from  the  jettison,  if  the  goods  were 
stowed  on  deck  without  their  consent. 

Art.  931.  The  ship's  provisions  and  munitions  of  war  shall  not 
contribute  to  general  average,  nor  shall  the  articles  of  personal  use  and 
clothes  of  the  captain,  officers,  and  crew. 

The  articles  of  personal  use  and  clothes  of  the  shippers,  supercargoes, 
and  passengers,  which  are  on  board  at  the  time  of  the  jettison  shall  also 
be  exempt. 

The  effects  jettisoned  do  not  contribute  to  the  payment  of  general 
average  losses  sustained  on  a  different  and  subsequent  occasion  by  the 
goods  saved. 

Art.  932.  When  the  experts  have  finished  the  valuation  of  the  effects 
saved,  and  of  those  lost  Avhich  constitute  the  general  average,  the  re- 
pairs of  the  ship  (if  necessary)  having  been  effected,  and  the  accounts 
for  the  repairs  having,  in  this  case,  been  approved  by  tlie  interested 
parties  or  by  the  judge,  all  the  documents  shall  be  handed  to  the  ap- 
pointed adjuster  in  order  that  he  may  proceed  to  the  apportionment  of 
the  averao:e. 


o 


Art.  933.  In  order  to  effect  the  adjustment,  the  adjuster  shaU 
examine  the  captain's  j)i'otest,  checking  it,  if  necessary,  by  the  log- 
book, and  all  the  contracts  which  may  have  been  made  between  the 
parties  interested  in  the  average,  the  estimates  and  examinations  of 
the  experts,  and  the  accounts  of  the  repairs  effected.  If  this  investiga- 
tion shows  that  there  is  any  defect  in  the  procedure  which  may  pre- 
judice the  rights  of  the  interested  parties  or  affect  the  responsibility, 
of  the  captain,  he  shall  call  attention  thereto  in  order  that  the  defect 


THE  LAW  OF  MEXICO.  631 

may  be  corrected,  if  possible,  and  if  not,  lie  shall  mention  the  defect 
in  the  preliminary  recital  of  the  adjustment. 

Then  he  shall  proceed  to  the  distribution  of  the  amount  of  the 
average,  for  which  purpose  he  shall  determine:  — 

(1)  The  contributing-  capital,  which  shall  be  determined  by  the 

value  of  the  cargo,  in  accordance  with  the  rules  set  out 
in  Art.  929. 

(2)  The  value  of  the  ship  in  the  state  in  which  she  is,  in  9,ccord- 

ance  with  the  declaration  of  the  experts. 

(3)  The  half  (50  per  cent.)  of  the  amount  of  the  freight,  de- 

ducting the  other  half  for  the  wages  and  keep  of  the 
crew. 

When  the  amount  of  the  general  average  has  been  determined,  in 
accordance  with  the  provisions  of  this  Code,  it  shall  be  apportioned 
rateably  among  the  contributing  values. 

Art.  934.  The  insurers  of  the  ship,  freight,  and  cargo  shall  be 
obliged  to  pay  the  amount  of  general  average,  as  soon  as  it  is  demanded 
from  each  of  these  interests  respectively. 

Art.  935.  If,  notwithstanding  the  jettison  of  the  goods,  or  cutting 
away  of  masts,  ropes,  and  tackle,  the  ship  perishes  in  the  same  casualty, 
there  shall  be  no  contribution  in  general  average. 

The  owners  of  the  effects  saved  shall  not  be  liable  to  indemnify  tlie 
owners  of  tho.se  jettisoned,  lost,  or  deteriorated. 

Art.  936.  If  the  ship,  after  having  been  saved  from  the  danger  which 
gave  rise  to  the  jettison,  is  lost  through  another  accident  during  the 
voyage,  the  existing  effects  saved  from  the  first  danger  shall  continue 
liable  to  contribution  to  the  general  average,  according  to  their  value 
in  their  actual  condition,  deducting  the  expenses  incurred  for  their 
salvage. 


o 


Art.  937.  If  the  ship  and  cargo  have  been  saved  by  the  cutting  away 
of  the  masts,  or  by  any  other  damag-e  intentionally  caused  to  the  ship 
for  that  purpose,  and  the  goods  afterwards  perish,  or  are  stolen,  the 
captain  cannot  require  the  shippers  or  consignees  to  contribute  to  the 
repair  of  the  damage,  unless  the  loss  has  been  caused  b}'  the  act  of  the 
owner  or  consio-nee  himself. 


o 


Art.  938.  If  the  owner  of  the  jettisoned  goods  recovers  them  after 
having  bcpn  compensated  in  general  average,  he  must  reimburse  to  the 
captain  and  the  other  parties  interested  in  the  cargo  the  sum  which  he 
has  rec.eived,  less  the  amount  of  the  damag-e  caused  by  the  jettison, 
and  the  salvage  expenses. 

In  this  case,  the  amount  reimbursed  shall  bo  divided  between  the 


632  APPENDIX  O. 

ship  and  the  parties  interested  in  the  cargo,  in  the  proportion  of  their 
contributions  to  the  payment  of  the  average. 

Art.  939.  If  the  owner  of  the  effects  thrown  overboard  recovers  them 
without  having  claimed  indemnification,  he  shall  not  be  obliged  to  con- 
tribute to  the  payment  of  general  average  sustained  by  the  rest  of  the 
cargo  after  the  jettison. 

Art.  940.  The  apportionment  of  the  general  average  shall  not  have 
executory  effect  until  it  has  been  unanimously  approved  by  the  inte- 
rested parties,  or,  failing  such  approval,  has  been  approved  by  the 
judge,  after  examining  the  adjustment  and  hearing  the  interested 
parties  who  are  pre.sent,  or  their  representatives. 

Art.  941.  When  the  adjustment  has  been  ajDproved,  it  shall  be  the 
duty  of  the  captain  to  carry  out  the  apportionment,  and  he  shall  be 
responsible  to  the  owners  of  the  things  which  have  sustained  the 
average  for  the  losses  which  his  delay  or  negligence  may  cause  to 
them. 

Art.  942.  If  the  contributories  fail  to  pay  the  amount  of  their  con- 
tributions within  three  days  after  demand  made  upon  them,  proceed- 
ings shall  be  taken  at  the  instance  of  the  captain,  for  the  sale  of  the 
effects  saved,  until  a  sufficient  sum  has  been  realised  to  effect  the  pay- 
ment . 

Art.  943.  If  the  interested  party,  on  receiving  the  effects  saved,  does 
not  give  sufficient  security  for  the  payment  of  his  share  of  the  general 
average,  the  captain  can  defer  the  deliver}-  of  the  said  effects  until  the 
payment  of  the  average. 


TITLE  THIRD. 

OF   SPECIAL   CONTRACTS    OF    MARITIME   COMMERCE. 
CHAPTER    I. — ox    THE    CONTRACT    OF    AFFREIGHTMENT. 

Art.  732.  If  during  the  voyage  the  ship  becomes  innavigable,  the 
caj)tain  is  obliged  to  engage  another  at  his  o^^^l  cost,  in  good  condition, 
to  receive  the  cargo  and  transport  it  to  its  destination.  For  this  pur- 
pose he  is  bound  to  seek  for  a  vessel  not  only  in  the  port  of  refuge, 
but  also  in  the  adjacent  ports  within  a  distance  of  150  kilometres. 

If  the  captain,  through  indolence  or  fraud,  does  not  procure  a  ship 
to  transport  the  cargo  to  its  destination,  the  shippers,  after  having 
previously  required  the  captain  to  hire  another  ship  Avithin  a  fixed 
period,  may  themselves  make  the  contract  of  affreightment,  applying 
to  the  judicial  autliority  to  sanction,  by  a  summary  judgment,  the 
contract  which  they  have  made.     The  same  authority  shall  compel  the 


THE  LAW  OF  MEXICO.  633 

captain,  on  his  own  account  and  responsibility,  to  carry  into  effect  the 
contract  of  affreightment  made   by  the   shippers. 

If  the  captain,  in  spite  of  his  endeavours,  cannot  find  another  ship  for 
the  freight,  he  shall  deposit  the  cargo  at  the  disposal  of  the  shippers, 
and  shall  give  them  an  account  of  what  has  occurred  as  soon  as  possible, 
in  which  case  the  freight  shall  be  determined  by  the  distance  covered 
by  the  ship,  without  any  compensation  being  due. 

Art.  733.  Freight  is  payable  according  to  the  stipulations  contained 
in  the  contract,  aud  if  there  be  none  expressed,  or  they  are  uncertain, 
the  following  rules  shall  be  observed:  — 

(1)  If  the  ship  is  freighted  by  the  month  or  day,  the  freight 

shall  commence  to  run  from  the  day  on  Avhich  the  ship 
is  placed  in  the  service. 

(2)  If  the  affreightment  is  made  for  a  fixed  time,  the  freight 

shall  commence  to  run  from  the  same  day. 

(3)  If    the    freight    is    payable    by  weight,  payment  shall  be 

made  by  gross  Aveight,  including  the  packing,  such  as  the 
casks  or  other  things  which  contain  the  cargo. 

Art.  734.  Freig'ht  is  due  for  goods  sold  by  the  captain  in  order  to 
effect  indispensable  repairs  to  the  hull,  machinery,  or  apparel,  or  for 
indispensable  and  urgent  necessities. 

The  value  of  these  goods  shall  be  fixed  according  to  the  result  of  the 
voyage,  viz.:  — 

(1)  If  the  shii)  arrives  safely  at  the  port  of  destination,  the 

captain  shall  account  for  the  price  which  goods  of  the 
same  kind  realise  in  tlie  said  port. 

(2)  If  the  ship  is  lost,  the  captain  shall  account  for  the  said 

goods  at  tlie  price  for  which  he  sold  them. 

The  same  rule  shall  be  observed  for  the  payment  of  the  freight, 
which  shall  be  paid  in  full  if  the  ship  arrives  at  her  destination,  and  in, 
proportion  to  the  distance  covered,  if  she  should  be  lost. 

Art.  735.  Freight  is  not  payable  for  goods  jettisoned  for  the  safety 
of  the  ship,  but  its  amount  shall  be  considered  general  average, 
reckoning  same  in  proportion  to  the  distance  covered  when  the  said 
goods  were  jettisoned. 

Art.  736.  Nor  is  freight  paj-able  for  goods  lost  by  shipwreck,  or 
stranding,  or  captured  by  pirates  or  enemies. 

If  the  freight  has  been  received  in  advance,  it  shall  bo  retui-ned, 
unless  there  be  an  agreement  to  the  contrarv. 

Art.  737.  If  the  shiii  or  goods  are  ransomed,  or  the  effects  saved  from 
the  shipwreck,  the  freight  shall  be  paid  accoi'ding  to  the  distance 
covered  by  the  ship  in  carrying  the  cargo ;  and  if,  after  being  repaired. 


634  APPENDIX  O. 

the  sliip  transports  the  cargo  to  the  port  of  destination,  the  freight  shall 
be  paid  in  full,  without  prejudice  to  the  proportion  duo  in  respect 
of  the  averag-e. 

Art.  738.  Merchandise  which  has  suffered  deterioration  or  diminu- 
tion through  inherent  defects,  or  the  bad  quality  and  condition  of  the 
packing,  or  accident,  shall  pay  the  whole  freight  agreed  upon  in  the 
contract  of  affreightment. 

Art.  739.  The  natural  increase  in  weight  or  size  of  goods  laden  on 
the  ship  shall  be  for  the  benefit  of  the  shipowner,  and  earn  freight  as 
fixed  in  the  contract  of  carriage. 

Art.  740.  The  cargo  shall  be  specially  liable  for  the  payment  of  the 
freight  and  the  expenses  incurred  for  it,  which  the  shippers  must  re- 
imburse, as  Avell  as  for  its  share  of  general  average;  but  it  shall  not  be 
lawful  for  the  captain  to  defer  the  discharge  for  fear  that  this  obliga- 
tion will  not  be  fulfilled. 

If  an  adequate  reason  for  mistrust  should  exist,  the  j  udg-c  or  tribunal 
may,  on  the  application  of  the  captain,  order  the  deposit  of  the  goods 
until  he  has  been  completely  indemnified. 

Art.  741.  The  captain  may  apply  for  the  sale  of  the  cargo  in  the 
proportion  neeessarj^  to  assure  the  payment  of  the  freight,  expenses  and 
averages  which  are  due  to  him,  reserving  the  right  to  claim  the  balance- 
of  what  may  be  due  to  him  on  these  accounts,  if  the  proceeds  of  the, 
sale  are  not  sufficient  to  cover  his  claim. 

Art.  742.  The  goods  carried  arc  preferentially  charged  with  the 
freight  and  expenses  during  twenty  days,  counting  from  the  day  of 
their  delivery  or  deposit.  During  this  period,  the  sale  of  the  said  goods 
may  be  petitioned  for,  even  although  there  be  other  creditors,  and  the 
shipper  or  consig-nee  has  been  declared  bankrupt. 

This  right,  nevertheless,  cannot  be  exercised  upon  goods  which,  after 
delivery,  have  passed  into  the  possession  of  a  third  party,  Avithout  fraud 
on  his  part  and  for  valuable  consideration. 

Art.  743.  If  the  consignee  can  not  be  found,  or  if  he  refuses  to 
receive  the  cargo,  the  judge  or  tribunal  must,  on  the  application  of  the 
captain,  order  it  to  be  deposited,  and  authorize  the  sale  of  Avhat  may  be 
necessary  for  the  payment  of  the  freight  and  other  expenses  for  which 
the  cargo  is  liable. 

The  sale  shall  also  take  place  when  tlie  goods  deposited  are  liable 
to  deterioration,  or  when,  by  reason  of  their  condition  or  other  circum- 
stances, the  expenses  of  preservation  and  custody  will  be  out  of  pro- 
portion to  their  value. 


THE  LAW  OF  MEXICO.  635 


CHAPTER  III. — ox  THE  OBLIGATIONS  OF  THE  CHARTERER. 

Art.  758.  lu  ea.se  of  putting-  iuto  a  port  of  refuge  for  repairs  to  the 
hull,  machinery,  or  apparel,  the  shippers  must  wait  until  the  ship  is 
rej)airecl;  but  may,  however,  unload  at  their  own  cost,  if  they  deem  it 
convenient. 

If,  in  the  interest  of  cargo  exposed  to  deterioration,  the  shippers,  or 
the  tribunal,  or  the  consul,  or  the  competent  authority  in  a  forei^ 
country,  should  order  the  diseharg-e  of  the  goods,  the  expenses  of  un- 
loading and  reloading  shall  be  borne  by  the  shipj)ers. 

Art.  759.  If  tlie  shipper,  without  the  happening-  of  any  of  the  cases 
of  force  majeure  mentioned  in  the  preceding  article,  wishes  to  have 
his  goods  unloaded  before  arrival  at  the  port  of  destination,  he  shall  pay 
the  freight  in  full,  as  well  as  the  expenses  of  the  delaj  due  to  his 
demand,  and  the  losses  which  may  be  caused  to  the  other  shippers. 

Art.  760.  In  shipments  of  general  cargo,  any  of  the  shippers  may 
unload  the  goods  before  commencing  the  voyage,  paying  the  half  of  the 
freight,  the  cost  of  the  stowage  and  restowage,  and  any  other  losses 
which  ma}^  thereby  be  caused  to  the  other  shippers. 

Art.  761.  The  discharg-e  being-  effected  and  the  cargo  being  placed 
at  the  disposal  of  the  consignee,  the  latter  must  immediately  pay  to  the 
captain  the  freight  earned  and  the  other  expenses  for  which  said  cargo 
mav  be  responsible. 

The  primag-e  shall  be  paid  in  the  same  proportion  and  at  the  same 
time  as  the  freight,  all  the  alterations  and  modifications  to  which  the 
payment  of  freig'ht  is  subject  having  effect  in  regard  to  it. 

Art.  762.  The  charterers  and  shippers  cannot  abandon  gxDods 
damaged  by  inherent  defects  or  accident,  for  the  payment  of  the  freight 
and  the  other  expenses.  The  abandonment  may,  nevertheless,  be  made 
if,  when  the  cargo  consists  of  liquids,  they  have  leaked,  and  not  more 
than  one-fourth  of  the  contents  remains  in  the  vessels. 


636  APPENDIX  P. 


APPENDIX  P. 


THE  LAW  OF  NOEWAY. 

As  the  editors  have  already  stated  iu  the  Appendix  on  the  Law  of 
Denmark,  the  Scandinavian  Maritime  Code,  of  which  Mr.  Lowndes 
published  a  draft  in  the  previous  edition  of  this  work,  has  been  adopted 
by  all  three  Scandinavian  States.  The  Norwegian  Maritime  Law  of 
the  20th  July,  1893,  in  which  it  is  embodied,  came  into  force  on  the 
1st  July,  1894.  Li  substance  and  in  arrang-ement,  the  Danish  and  Nor- 
Avegian  Laws  are  the  same  as  the  Swedish  Law,  an  annotated  English 
translation  of  which  is  set  out  in  Appendix  U,  infra ;  and  it  is  therefore 
unnecessary  to  insert  here  the  text  of  the  Norwegian  Law.  The  editors 
are  indebted  to  Mr.  Th.  Ameln,  Average  Adjuster,  of  Bergen,  for  the 
particulars  of  the  following  Norwegian  decisions  of  the  Norwegian 
Supreme  Court  relating  to  §  188  (No.  7)  and  §  190  (No.  7)  of  the  Code, 
given  on  the  30tli  September,  1903:  — 

Owing  to  a  leak,  the  vessel  Avas  obliged  to  put  into  a  port  of  refuge. 
The  captain  insisted  on  having  the  port  of  refuge  expenses  apportioned 
as  general  average,  and  only  delivered  the  cargo  against  the  under- 
taking of  the  receiver  "  to  share  the  expenses  of  the  average  according 
to  the  Maritime  Law^,  after  a  lawfully-settled  average  statement."  The 
Supreme  Court  would  not  hold  that  by  this  undertaking  he  had  waived 
any  defence  given  to  him  by  the  Law.  They  held  that  tlie  leak,  which 
was  the  cause  of  putting-  in,  was  due  to  the  unseaworthiness  of  the  vessel 
at  the  commencement  of  the  voyag-e,  but  did  not  decide  whether  this 
circumstance  relieved  the  cargo-owner  from  the  liability  to  contribute 
to  general  average,  as  he  had  agreed  tliat  the  contribution  Avas  due,  pro- 
vided that  the  defect  was  of  such  nature  that  it  could  not  have  been 
discovered  at  the  time  of  departure  by  the  exercise  of  due  care.  (See 
Code,  §  142  in  fine.)  The  Court,  however,  held  that  the  onus  of  prov- 
ino-  that  the  defect  was  of  such  nature  Avas  on  the  A'essel,  and  as  such 
proof  w^as  not  given,  the  receiA^er  of  the  cargo  Avas  absoh'ed. 

Mr.  Ameln  has  also  informed  the  editors  that  the  judgment  of  the 
Danish  Court,  of  the  24th  January,  1898  (set  out  ante,  Appendix  H, 
p.  495),  agrees  Avith  the  Norwegian  practice.  If,  however,  there  had 
been  a  full  negligence  clause  in  the  bill  of  lading,  the  shipoAvners  Avould 
not  have  been  liable.  The  Danish  judgment  of  the  20th  January, 
1908  {ante,  p.  495j,  he  says,  also  agrees  Avith  the  Norwegian  practice. 

As  in  Denmark,  average  adjusters  are  appointed  by  the  Govern- 
ment, after  haAing  passed  an  examination  before  a  permanent  examin- 
ing committee. 


THE  LAW  OF  PERU.  637 


APPENDIX  Q. 


THE  LAW  OF  PERU. 

The  Peruvian  Law  relating-  to  g-eneral  average  is  contained  in 
Arts.  819—838,  859—881,  of  the  Commercial  Code,  which  came  into 
force  on  the  1st  July,  1902.  Its  provisions  on  this  subject  are  identical 
with  those  of  Arts.  881—900,  921—943,  of  the  Mexican  Code  of  1889, 
which  are  printed  in  Appendix  0,  ante,  and  it  is  therefore  unuecessary 
to  set  them  out  here. 


638 


APPENDIX  R. 


APPENDIX  R. 


.THE  LAW  OF,  PORTUGAL. 

EXTRACTS  FROM  THE  PORTUGUESE  COMMERCIAL  CODE  WHICH 
WAS  PROilULGATED  ON  THE  28th  JUNE,  1888,  AND  CAME  INTO 
FORCE  ON  THE  1st  JANUARY,   1889. 


L.  III. 

Do  COMMERCIO  MaRITIMO. 

TIT.  V. 

Das  Avarias. 

Art.  634°.  Sao  reputadas  avarias 
todas  as  despesas  extraordinarias 
feitas  com  o  navio  ou,  com  a  sua 
carga  conjujita  ou  separadamente, 
e  todos  OS  damnos  que  acontecem 
ao  navio  e  carga  desde  que  come- 
Qani  OS  riscos  de  mar  ate  que 
acabam. 


L.  HI. 

Of  Maritime  Commerce. 

TIT.  V. 

Of  Average. 

Art.  634.  All  extraordinary  ex- 
penses incurred  for  the  ship  or  her 
cargo,  jointly  or  separately,  and 
also  aU  damage  sustained  by  the 
ship  and  cargo,  from  the  com- 
mencement of  the  sea-risks  until 
their  termination,  are  considered 
average . 


§  1°.  Nao  sao  reputadas  avarias, 
mas  simples  despesas  a  cargo  do 
navio,  as  que  ordinariamente  se 
fazem  com  a  sua  saida  e  entrada, 
assim  como  com  o  pagamento  de 
direitos  e  outras  taxas  de  nave- 
gagao,  e  com  as  tendentes  a  ali- 
geira-lo  para  passar  os  baixos  ou 
bancos  de  areia  conhecidos  a  saida 
do  logar  da  partida. 


§  1.  The  folloAving  are  con- 
sidered not  to  be  average,  but 
ordinary  expenses  to  be  defrayed 
by  the  ship,  viz.,  the  usual  ex- 
penses of  leaving  and  entering 
port,  as  -well  as  the  payment  of 
dues  and  other  taxes  of  naviga- 
tion, and  the  expenses  of  lighten- 
ing the  ship  in  order  to  pass  over 
known  shoals  or  sandbanks  in 
I  leaving  the  place  of  departure. 


THE  LAW  OF  PORTUGAL. 


639 


§  2°.  As  avarias  regulara-se  por 
convenQao  das  partes  e,  na  sua 
falta  ou  insufficiencia,  pelas  dispo- 
sig.oes  d'este  codigo. 


Art.  635°.  As  avarias  sao  de 
duas  especies:  avarias  grossas  ou 
communs,    e    avarias    simples    ou 


particulares. 


§  1°.  Sao  avarias  grossas  ou 
communs  todas  as  despesas  extra- 
ordinarias  e  os  sacrificios  feitos 
voluntariamente  com  o  fim  de 
evitar  vun  perigo  pelo  capitao  ou 
por  sua  ordem,  para  a  seguranga 
commum  do  navio  e  da  carga  desde 
o  seu  carregamento  e  partida  ate 
o  seu  retorno  e  descarga. 

§  2°.  Sao  avarias  simples  ou 
particulares  as  despesas  causadas 
e  o  damno  soffrido  so  ])e\o  navio 
ou  pelas  fazendas. 

Art.  636°.  As  avarias  communs 
sao  repartidas  proporcionalmentc 
entre  a  carga  e  a  metade  do  valor 
do  navio  e  do  frete. 

Art.  637°.  As  avarias  simples 
sao  supportadas  e  pagas  ou  so  pelo 
navio  ou  so  pela  cousa  quo  soffreu 
o  damno  ou  occasionou  a  dcsposa. 


Art.  638°.  0  exame  e  a  esti- 
magao  da  avaria  na  carga,  sendo 
o  damno  visivel  por  fora,  serao 
feitos  antes  da  entrega:  era  caso 
contrario,  o  exame  podera  fazer-se 
depois,  comtanto  que  se  verifiquc 
no  prazo  de  quarenta  e  oito  horas 


§  2.  Averages  are  regulated  by 
the  agreement  of  the  parties,  or 
in  default  of  an  agreement,  or  if 
the  agreement  be  inapplicable,  by 
the  provisions  of  this  Code. 

Art.  635.  Averages  are  of  two 
kinds — general  or  common  aver- 
age, and  simple  or  particular 
average . 

§  1 .  All  extraordinary  expenses 
incurred  and  sacrifiees  made  volun- 
tarily by  the  captain  or  in  pursu- 
ance of  his  orders,  with  the  object 
of  avoiding  a  danger,  for  the 
common  safety  of  ship  and  cargo, 
from  loading  and  departure  to 
return  and  discharge,  are  general 
or  common  average. 

§  2.  Expenses  incurred  for,  and 
damage  suffered  by,  the  ship  or 
cargo  alone  are  simple  or  parti- 
cular average. 

Art.  636.  General  average  is  ap- 
portioned rateably  between  the 
cargo  and  half  the  value  of  the 
ship  and  freight. 

Art.  637.  Particular  averao-e  is 
borne  and  paid  cither  solely  by 
the  ship,  or  solely  by  the  thing 
which  has  suffered  the  damage  or 
caused  the  expense. 

Art.  638.  The  examination  and 
assessment  of  average  to  the  cargo 
shall  be  made  before  delivery,  if 
the  damage  is  visible  externally; 
in  the  contrary  case,  the  exami- 
nation may  be  made  afterwards, 
provided    it     takes    place    within 


640 


APPENDIX  R. 


da  entrega,  isto  sem  prcjuizo  de 
outra  prova. 

§  unico.  Na  estimagao  a  que  se 
refere  este  artigo  determinar-se-lia 
qual  teria  sido  o  valor  da  carga, 
se  tivesse  chegado  sem  avaria,  e 
qual  e  o  seu  valor  actual,  tudo  isto 
iiidepeudentemente  da  estimagao 
do  lucro  esperado,  sem  que  em  ease 
algum  possa  ser  ordenada  a  venda 
de  carga  para  se  Ihe  fixar  o  valor, 
salvo  a  requerimento  do  respective 
dono. 

Art.  G39°.  Ha  vera  repartigao  de 
avaria  grossa  por  contribuigao 
sempre  que  o  navio  e  a  carga 
forem  salvos  no  todo  ou  em  parte. 

§  1°.  O  capital  contribuinte 
compoe-se: 

1°.  Do  valor  liquido  integral  que 
as  cousas  sacrificadas  teriam  ao 
tempo  no  logar  da  descarga; 


2°.  Do  valor  liquido  integral  que 
tiverem  no  mesmo  logar  e  tempo 
as  cousas  salvas  e  tambem  da  im- 
portancia  do  prejuizo  que  soff re- 
ram  para  a  salvagao  commum; 

3°.  Do  frete  a  veneer,  deduzidas 
as  despesas  que  teriam  deixado  de 
se  fazer  se  o  navio  e  a  carga  se 
perdessem  na  occasiao  em  que  se 
dcu  a  avaria. 


§  2°.  Os  objectos  do  uso  e  o  fato, 
as  soldadas  dos  marinheiros,  as 
bagagens     dos    passageiros    e    as 


forty-eight     hours     of     delivery, 
without  prejudice  to  other  proof. 

The  assessment  to  which  the 
present  Article  relates  is  for  the 
purpose  of  determining  what  the 
value  of  the  cargo  would  Imve  been 
if  it  had  arrived  undamaged,  and 
its  actual  value,  independently  of 
any  estimate  of  expected  profits, 
there  being  in  no  case  a  right  to 
order  a  sale  of  the  cargo  to  deter- 
mine its  value,  except  at  the  re- 
quest of  the  owner. 

Art.  639.  There  must  be  an  ap- 
portionment in  general  average 
every  time  the  ship  and  cargo  are 
saved,  in  whole  or  in  part. 

§  1.  The  contributing  capital 
comprises: 

1.  The  clear  integral  value 
which  the  things  sacrificed  would 
have  had  at  this  time  at  the  place 
of  discharge. 

2.  The  clear  integral  value  at 
the  same  time  and  place  of  the 
things  saved,  together  with  the 
amount  of  the  loss  which  they 
have  suffered  for  the  common 
safety. 

3.  The  freight  being  earned,  de- 
ducting the  expenses  which  would 
not  have  been  incurred  if  the  ship 
and  cargo  had  perished  on  the 
occasion  when 
curred. 


the    average    oc- 


§  2.  Articles  for  personal  use 
and  clothing,  the  w'ages  of  the 
crew,    passengers'     baggage,    and 


THE  LAW  OF  PORTUGAL. 


641 


mujiigoes  de  guerra  e  de  boea  na 
quantidade  neeessaria  para  a 
viageni,  posto  que  pagas  por  eon- 
tribuigao,  nao  fazem  parte  do  ca- 
pital contribuinte. 

Art.  640°.  A  carg-a  de  que  nao 
houver  conhecimento  ou  declaragao 
do  capitao  ou  que  nao  se  achar  na 
lista  ou  no  manifesto  nao  se  paga, 
se  for  alijada,  mas  contribue  na 
avaria  grossa  salvando-se. 


An.  641".  Os  objectos  carre- 
gados  sobre  o  conves  contribuem 
na  avaria  grossa  salvando-se. 

§  unico.  Sendo  alijados  oudam- 
nificados  pelo  alijamento  nao  sao 
eontemplados  na  contribuiQao  e  so 
dao  logar  a  acgao  de  indemnizagao 
contra  o  capitao,  navio  e  frete  se 
foram  carregados  na  coberta  sem 
consentimento  do  dono;  mas 
tendo-o  havido  havera  logar  a 
uma  contribuiQao  especial  entre  o 
navio,  o  frete  e  os  outros  objectos 
carregados  nas  mesmas  circun- 
stancias,  sem  prejuizo  da  contri- 
buigao  geral  para  as  avarias  com- 
muns  de  todo  o  carregamento. 


munitions  of  war  and  provisions 
within  the  quantity  necessary  for 
the  voyage,  do  not  contribute,  al- 
though they  are  made  good  by 
contribution. 

Art.  640.  Goods  for  which  there 
is  no  bill  of  lading  or  declaration 
by  the  captain,  or  which  do  not  ap- 
pear on  the  cargo-list  or  manifest, 
are  not  contributed  for  when  they 
are  jettisoned,  but  contribute  to 
general  average  when  they  are 
saved. 

Art.  641.  Goods  laden  on  deck 
contribute  to  general  average  when 
they  are  saved. 

If  they  are  jettisoned  or  dam- 
aged by  a  jettison,  they  cannot  be 
the  subject  of  contribution;  there 
can  only  be  an  action  for  an  in- 
demnity against  the  captain,  the 
ship  and  the  freight,  if  they  have 
been  laden  on  deck  Avithout  the 
consent  of  their  owner.  If,  how- 
ever, he  has  given  his  consent, 
there  must  be  a  special  contribu- 
tion as  between  the  ship,  the 
freight  and  the  other  articles  car- 
ried in  the  same  manner,  without 
prejudice  to  the  general  contribu- 
tion of  the  whole  cargo  to  general 
average  (a) . 


(a)  Art.  497  is  as  follows  :  — 

The  captain  is  responsible  to  the  shippers  of  goods  shipped  in  accordance  with  the 
bills  of  lading-,  for  damage  sustained  by  goods  which  he  has  carried  <>n  deck  without 
the  -written  consent  of  the  shipper,  but  not  for  valuables,  money  and  securities  not 
declared  in  the  bills  of  lading. 

A  simple  declaration  in  the  bill  of  lading  that  the  goods  will  be  carried  on  deck 
implies  the  consent  of  the  shipper,  unless  he  protests  immediately. 

L.  TT 


6^2 


APPENDIX  K. 


Art.  642".  Se,  uao  obstante  o 
alijamento  oa  o  corte  de  apparel- 
hos,  o  navio  se  nao  salva,  nao  ha 
logar  a  contribui^ao  alguma  e  os 
objectos  salvos  nao  respondem  por 
pagamento  algum  em  contribuigao 
de  avaria  dos  objectos  alijados, 
avariados  ou  cortados. 

§  1°.  Se  pelo  alojamento  ou  corte 
de  apparelhos  o  navio  se  salva  e, 
continuando  a  viagem,  perece,  os 
objectos  salvos  contribuem  so  por 
si  no  alijamento  no  pe  do  seu  valor 
no  estado  em  que  se  acham,  dedu- 
zidas  as  despesas  de  salvagao. 


§  2°.  Os  objectos  alijados  nao 
contribuem  em  case  algum  para  o 
pagamento  dos  damnos  soffridos 
depois  do  alijamento  pelos  ob- 
jectos salvos. 

§  3°.  A  carga  nao  contribue  para 
o  pagamento  do  navio  perdido  ou 
declarado  innavegavel. 

Art.  643°.  As  disposigoes  acerca 
de  avarias  grossas  e  de  avarias 
simples  sao  igualmente  applicaveis 
as  barcas  e  aos  objectos  carregados 
nella.s  que  forem  empregados  em 
alliviar  o  navio. 

§  1°.  Perdendo-se  a  bordo  das 
barcas  fazendas  descarregadas 
para  alliviar  o  navio,  a  repar- 
tigao  da  sua  perda  sera  feita  entre 
o  navio  e  o  seu  inteiro  carrega- 
mento. 


Art.  642.  If  notwithstanding  the 
jettison,  or  cutting  away  of  the  ap- 
parel, the  ship  has  not  been  saved, 
there  can  be  no  contribution,  and 
the  articles  saved  are  not  liable  to 
make  any  payment  or  contribution 
in  average  for  the  articles  jetti- 
soned, da,maged,  or  cut  away. 

§  1.  If,  in  consequence  of  the 
jettison  or  cutting  away  of  the  ap- 
parel, the  ship  has  been  saved,  but, 
continuing  her  voyage,  she  is  lost, 
only  the  articles  which  are  saved 
contribute  among  themselves  to 
the  jettison  on  their  value  in  their 
existing  condition  less  the  salvage 
expenses . 

§  2.  The  jettisoned  articles  do 
not  in  any  case  contribute  to  the 
payment  of  damage  sustained 
after  the  jettison  by  the  goods 
saved. 

§  3.  The  cargo  does  not  contri- 
bute for  a  ship  which  has  been 
lost  or  declared  innavigable. 

Art.  643.  The  provisions  relat- 
ing to  general  and  particular 
average  are  equally  applicable  to 
the  lighters  employed  to  lighten 
the  ship  and  to  the  goods  laden  on 
them. 

§  1.  If  goods,  discharged  t« 
lighten  the  ship,  are  lost  when  on 
board  the  lighters,  the  loss  is  ap- 
portioned over  the  ship  and  the 
whole  of  her  cargo. 


THE  LAW  OF  PORTUGAL. 


643 


§  2°.  Se  o  navio  se  perde  com  o 
resto  do  carregamento,  as  fazendas 
descarregadas  nas  barcas,  ainda 
que  cheguem  ao  sen  destine,  nao 
contribuein. 

Art.  644°.  Nao  coiitribuem  nas 
perdas  acontecidas  a  navio,  para 
cuja  carga  eram  destinadas,  as 
fazendas  que  estiverem  em  terra. 

Art.  645°.  Se  acontecer,  durante 
o  trajecto,  quer  as  barcas,  quer  as 
fazendas  nellas  carregadas,  damno 
repuiado  avaria  grcssa,  este  daumo 
sera  supportado,  um  tergo  pelas 
barcas  e  dois  tergos  pelas  fazendas 
carregadas  a  sen  bordo. 

Art.  646*^.  Se  depois  de  feita  a 
repartigao  os  objectos  alijados 
foram  reeobrados  pelos  donos, 
esies  reporao  ao  capitao  e  aos  in- 
teressados  a  contrlbuigao  reoebida, 
deduzidos  o  danmo  causado  pelo 
alijaniento  e  as  despesas  da  recu- 
peragao,  repartindo-se  proporcion- 
almente  entre  os  interessados  que 
contribuam  a  reposiQao  recebida. 


§  unico.  Se  o  dono  dos  objectos 
alijados  os  recuperar  sera  reclamar 
indemnizagao  alguma,  estes  ob- 
jectos nao  contribuirao  nas  avarias 
sobrevindas  ao  restante  da  carga 
depois  do  alijamento. 


Art.  647°.  O  navio  contribue 
pelo  seu  valor  no  logar  da  des- 
carga,  ou  pelo  prego  da  sua  venda, 
deduzida  a  importancia  das  avarias 


§  2.  It"  the  ship  is  lost  with  the 
rest  of  her  cargo,  the  goods  placed 
in  the  lighters  are  not  liable  for 
any  contribution,  although  they 
reach  their  destination  in  safety. 

Art.  644.  Goods  on  land  do  not 
contribute  to  losses  sustained  by 
a  ship  on  which  it  was  intended 
to  load  them . 

Art.  645.  If  during  the  transit 
general  average  damage  is  sus- 
tained either  by  the  lighters  or 
the  goods  laden  on  them,  one-third 
of  the  damage  is  borne  by  the 
lighters  and  two-thirds  bj^  the 
goods  on  board  of  them. 

Art.  646.  If,  after  the  appor- 
tionment, the  jettisoned  aiticles 
have  been  recovered  by  their 
owners,  the  owners  must  return  to 
the  captain  and  the  parties  inte- 
rested the  contribution  which  they 
had  received,  less  the  damage 
caused  by  the  jettison  and  the  ex- 
penses of  recovery.  The  amount 
refunded  is  to  be  divided  propor- 
tionately between  the  parties  by 
whose  contributions  it  had  been 
provided. 

§.  If  the  owner  of  the  jettisoned 
articles  recovers  them  without  hav- 
ing claimed  an  indemnity,  they  do 
not  contribute  to  average  losses 
sustained  by  the  rest  of  the  cargo 
after  the  jettison. 

Art.  647.  The  ship  contributes 
on  her  value  at  the  place  of  dis- 
charge, or  on  the  price  for  which 
she  was  sold,  less  the  amount  of 


T  T  2 


644 


APPENDIX  Pt. 


particulares,     ainda      que     sejam 
posteriores  a  avaria  commun. 


Art.  648°.  As  fazendas  e  os  mais 
objectos  que  devem  contribuir, 
assim  como  os  objectos  alijados  ou 
sacrificados,  serao  estimados  se- 
gundo  o  seu  valor,  deduzidos  o 
frete,  direitos  de  entrada  e  outros 
de  descarga,  tendo-se  em  conside- 
ragao  os  eonhecimentos,  as  facturas 
e,  na  sua  falta,  outros  quaesquer 
meios  de  prova. 

§  1°.  Estando  designados  nos 
eonhecimentos  a  qualidade  e  valor 
das  fazendas,  se  valerem  mais, 
contribuirao  pelo  seu  valor  real, 
sendo  salvas,  e  serao  pagas  por 
esse  valor,  mas  em  caso  de  alija- 
mento  ou  avaria  regulara  o  valor 
dado  no  conhecimento. 


§  2°.  Valendo  as  fazendas  meuos, 
contribuirao  segundo  o  valor  in- 
dicado,  se  forem  salvas,  mas  at- 
tender-se-ha  ao  valor  real,  se 
forem  alijadas  ou  estiverem 
avariadas. 

Art.  649°.  As  fazendas  carre- 
gadas  serao  estimadas  segundo  seu 
valor,  no  logar  da  descarga,  dedu- 
zidos o  fre^e,  os  direitos  de  entrada 
e  outros  de  descarga. 

§  1°.  Se  a  reparti^ao  houver  de 
fazer-se  em  logar  do  reino  de  onde 
o  navio  partiu  ou  tivesse  de  partir, 
o  valor  dos  objectos  carregados 
sera  deberminado  segundo  o  prego 


her  particular  average  losses,  even 
though  sustained  later  than  the 
general  average. 

Art.  648.  The  goods  and  other 
articles  that  have  to  contribute, 
as  well  as  the  articles  jettisoned 
or  sacrificed,  shall  be  assessed  at 
their  value,  less  the  freight,  im- 
port duties  and  other  expeiLses  of 
the  discharge,  as  proved  by  bills 
of  lading,  invoices,  or  in  their  ab- 
sence by  any  other  means  of  proof. 


§  1.  If  the  quality  and  value  of 
the  goods  are  stated  in  the  bills 
of  lading,  and  they  are  worth  more^ 
they  shall  contribute  on  their  real 
value,  if  they  are  intact,  and  they 
shall  be  contributed  for  on  such 
value;  but  if  they  have  been  jet- 
tisoned or  damaged  the  adjustment 
shall  be  made  on  the  value  stated 
in  the  bill  of  lading. 

§  2.  If  the  goods  are  worth  less, 
they  shall  contribute  on  the  de- 
clared value,  if  they  are  intact; 
but  if  they  have  been  jettisoned 
or  damaged  the  adjustment  must 
be  made  on  their  real  value. 

Art.  649.  The  goods  laden  ou 
board  shall  be  assessed  at  their 
value  at  the  place  of  discharge, 
less  the  freight,  import  duties  and 
other  expenses  of  the  discharge. 

§  1.  If  the  adjustment  is  made 
in  a  port  in  the  kingdom  from 
which  the  ship  sailed  or  was  in- 
tended to  sail,  the  goods  shall  be 
estimated    at    the    cost   price,  to- 


THE  LAW  OF  PORTUGAL. 


645 


da  compra,  acrescidas  as  despesas     gether  with  the  expenses  incurred 


ate   bordo,   nao   comprehendido   o 
preraio  do  seguro. 

§  2°.  Se  OS  object-OS  estiverem 
avariados,  serao  estimados  pclo  seu 
valor  real. 

§  3°.  Se  a  viageni  se  rompeu  ou 
a8  fazendas  se  venderam  fora  do 
reiuo  e  a  avaria  nao  pode  la 
regular-se,  tomar-se-ha  por  capital 
contribuinte  o  valor  das  fazendas 
no  logar  do  roinpimento,  ou  o 
producto  liquido  que  se  tiver 
■obtido  no  logar  da  venda. 


Art.  650°.  As  avarias  grossas  ou 
conimuns  serao  reguladas  e  re- 
paitidas  segundo  a  lei  do  logar 
onde  a  carga  for  entregue. 


Art.  651°.  Todas  as  avarias 
gi'ossas  successivas  repartem-se 
fiiiuultaneamente  no  fim  da  viagem, 
corao  se  formassem  uma  so  e 
nipsma  avaria. 

4^  xmico.  Nao  se  applica  a  regra 
d'o.ste  artigo  as  fazendas  embar- 
cadas  ou  desembarcadas  em  um 
pcino  de  escala,  mas  tao  somente  a 
respeito  d'estas  fazendas. 

Art.  652°.  A  regulaQao  e  repar- 
tigao  das  avarias  grossas  fazem-se 
a  diligencia  do  capitao  e,  deixando 
ello  de  a  promover,  a  diligencia 
dos  proprietarios  do  navio  ou  da 
carga,  sem  prejuizo  da  responsa- 
bilidade  d'aquelle. 


until  they  were  put  on  board,  not 
including  the  insurance  premium. 

§  2.  Articles  which  are  dam- 
aged shall  be  assessed  at  their  real 
value. 

§  3.  If  the  voyage  has  been 
broken  up,  or  if  the  goods  have 
been  sold  out  of  the  kingdom  at 
a  place  where  the  average  cannot 
be  adjusted,  the  contributory  value 
shall  be  the  value  of  the  goods  at 
the  place  where  the  voj^age  was 
broken  up,  or  the  net  proceeds 
realized  at  the  place  of  sale. 

Art.  650.  General  or  common 
average  must  be  adjusted  and  dis- 
tributed according  to  the  law  of 
the  place  where  the  cargo  is  de- 
livered. 


Art. 


averages 


651.  All  successive  general 
are  adjusted  simulta- 
neously at  the  end  of  the  voyage, 
as  if  they  only  constituted  one  and 
the  same  average. 

§.  This  rule  does  not  apply  to 
goods  taken  on  board  or  dis- 
charged at  a  port  of  call;  but  the 
exception  is  confined  to  these 
goods. 

Art.  652.  The  adjustment  and 
distribution  of  general  average 
are  made  at  the  instance  of  the 
captain,  and  if  he  neglects  to  take 
steps  for  this  purpose,  at  the  in- 
stance of  the  owners  of  the  ship  or 
cargo,  without  prejudice  to  the 
captain's  responsibility. 


II 


646 


APPENDIX  R. 


§  unico.  0  capitao  apresentara 
junto  com  o  seu  relatorio  e  devido 
protesto  todos  os  livros  de  bordo 
e  mais  documentos  concernentes  ao 
sinistro,  ao  navio  e  a  carga. 


Art. 


653°. 


Nao  havera  logar  a 


acQao  por  avarias  conte  o  afretador 
e  o  recebedor  da  carga,  se  o  capitao 
recebeu  o  frete  e  entregou  as 
fazendas,  sem  protesto,  ainda  que 
o  pagamento  do  frete  fosse  ante- 
cipado. 


TIT.   I.  CAP.  III. 

Do  Capitao. 

Art.  508,  §  8.  Sacrificar  de  pre- 
ferencia,  em  caso  de  alijamento,  os 
objectos  de  menos  valor,  os  menos 
aecessarios  ao  navio,  os  mais 
pesados  e  os  que  pejarem  a 
coberta. 


TIT.  IV. 

Do  CONTRATO  DE  RiSCO. 

Art.  631.  O  dador  contribue 
para  as  avarias  communs  em  bene- 
ficio  do  tomador,  sendo  nulla  qual- 
quer  convengao  em  contrario. 

TIT.  VI. 
Das  arribas  forcadas. 

Art.  654°.  Sao  justas  causas  de 
arribada  forgada: 

1°.  A  falta  de  viveres,  aguada 
ou  combustivel; 


§.  The  captain  must  hand  over^ 
v^ith  his  report  and  protest,  the 
ship's  books  and  all  the  other 
papers  relating  to  the  casualty,  the 
ship  and  the  cargo. 

Art.  653.  An  action  will  not  lie 
against  the  freighter  and  the  re- 
ceiver of  the  cargo  for  average 
losses,  if  the  captain  has  received 
the  freight  and  delivered  the  goods 
without  protest,  even  though  the 
freight  has  been  paid  in  advance. 


From  TIT.   I.   CAP.   III. 

Of  the  Captain. 

Art.  508,  §  8.  If  it  be  necessary 
to  lighten  the  ship,  the  captain 
must  select  for  sacrifice  the  articles 
of  least  value,  those  which  are  least 
necessary  for  the  ship,  the  heaviest 
and  those  which  encumber  the 
deck. 


From  TIT.  IV. 

Of  Bottomry. 

Art.  631.  The  lender  contributes 
to  general  average  in  relief  of  the 
borrower;  any  agreement  to  the 
contrary  is  void. 

From  TIT.  VI. 

Of  putting  into  a  Port  op 
Refuge. 

Art.  654.  Justifiable  grounds  for 
putting  into  a  port  of  refuge  are: 

1.  Want  of  victuals,  water  or 
fuel; 


THE  LAW  OF  PORTUGAL. 


(j4; 


2^.   O    t-emor    fundado    de     in-  ;       2.  Reasonable  fear  of  euemies; 
imigos; 

.'i°.   Qualquer  accideute  que  in-  -i.  Any  accident  which  has  dis- 

habilite  o    navio    de  continual-    a  ;  abled    the    ship    from  continuing' 
navegagiio.  i  the  navigation. 


Art.  65o°.  Em  qualquer  dos 
casos  previstos  no  artigo  prece- 
dente,  ouvidos  os  principaes  da 
tripulagao  e  langada  e  assinada  a 
resolugao  no  diario  de  navcgagao,, 
o  capitao  podera  procedcr  ;i  arri- 
bada. 


Art.  G.5.3.  Jn  any  of  the  cases 
specified  in  the  preceding  Article, 
having  heard  the  principal  mem- 
bers of  the  crew,  and  entered  and 
signed  the  resolution  in  the  log- 
book, the  captain  may  proceed  to 
put  into  a  port  of  refuge. 


§   1°.   Os  interessados  na  carga  '       The    parties    interested    in    the 

que  estiverem  a  bordo  podem  pro-  cargo  who  happen  to  be  on  board 

testar  contra  a  deliberagao  tomada  i"ay  protest  against  the  decision  to 

de  proceder  a  arribada.  j   pwt  into  a  port  of  refuge. 


§  2'.  Dentro  de  quarenta  e  oito 
horas  depois  da  entrada  no  porto 
da  arribada  deve  o  capitao  fazer 
o  sen  relatorio  perante  a  auto- 
ridade  competente. 

Art.  656^.  Sao  por  conta  do 
arniador  ou  fretador  as  despesas 
occasionaclas  pela  arribada  for- 
Qada. 

An,.  G57".  Considera-se  legitima 
a  arribada  que  nao  proceder  de 
dolo,  negligencia  ou  culpa  do  dono, 
do  capitao  ou  tripulagao. 


Art.  Bos'".    Considera-se    illogi- 
tima  a  arribada: 


1°.  Se  a  falta  de  viveres,  aguada 
ou  combustivel  proceder  de  se  nao 
ter  feito  o  necessario  fornecimento, 


Within  forty-eight  hours  after 
entering  the  port  of  refuge,  the 
captain  must  make  his  report  to 
the  competent  authority. 


Art.  65G.  The  expen.ses  caused 
by  putting  into  a  port  of  refuge 
are  on  account  of  the  shipowner 
or  charterer. 

Arc.  657.  Putting  into  a  port  of 
refuge  is  considered  legitimate, 
when  not  caused  by  the  fraud, 
negligence  or  fault  of  the  owner, 
captain  or  crew. 

Ar(.  6o8.  Putting  into  a  port  of 
refuge  is  considered  no(  to  be 
legitimate: 

1 .  When  the  want  of  victuals, 
water  or  fuel  is  due  to  the  fact 
that    a  sufiicient   supply  was    not 


()48 


APPENDIX  R. 


ou  de  se  haver  perdido    por    nia     provided,  or  that  they  have  been 
arruniaQao  ou  deseuido;  |  lost  through  bad  stowage  or  negli- 

gence ; 


2°.  Se  o  temor  do  inimigo  nao 
for  justificado  por  factos  posi- 
tives ; 

3°.  Provindo  o  accideute  que 
inhabilitou  o  navio  de  continuar  a 
uavegagao  da  falta  de  bom  con- 
certo, apercebimento,  esquipagao  e 
ma  arruma^ao  ou  resultando  de 
disposigao  desacertada  ou  de  falta 
de  cautela  de  capitao. 


Art.  659°.  Sendo  a  arribada  le- 
gitima,  nem  o  dono  nem  o  capitao 
respondem  pelos  prejuizos  que  da 
mesma  possam  resultar  aos  carre- 
gadores  ou  proprietaries  da  carga. 


§  unico.  Sendo  illegitima,  o 
capitao  e  o  dono  serao  conjunta- 
mente  responsaveis  ate  a  concor- 
rencia  do  valor  do  navio  e  frete. 

Art.  660°.  So  pode  autorizar-se 
descarga  no  j)orto  da  arribada 
sendo  indispensavel  para  concerto 
do  navio  ou  reparo  de  avaria  na 
carga,  devendo  nestes  casos  prece- 
der  no  reino  e  sens  dominios  auto- 
rizagao  do  juiz  competente,  e  no 
estrangeiro  autorizagao  do  agente 
consular,  havendo-o,  e,  na  sua 
falta,  da  auloridade  local. 


2.  If  the  fear  of  enemies  is  not 
justified  by  positive  facts; 


3.  If  the  accident  which  has 
made  the  ship  unfit  to  continue 
the  voyage  is  due  to  inadequacy 
of  repairs,  fitting-out  or  equip- 
ment, or  to  bad  stowage,  or,  when 
it  residts  from  a  wrong  course  of 
action  or  a  want  of  prudence  on 
the  part  of  the  captain. 

Art.  659.  If  putting  into  the 
port  of  refuge  was  legitimate, 
neither  the  owner  nor  the  captain 
is  responsible  for  any  losses  that 
the  shippers  or  owners  of  the  cargo 
may  sustain. 

§.  If  it  was  not  legitimate,  the 
captain  and  the  owner  are  jointly 
responsible,  to  the  value  of  the 
ship  and  freight. 

Art.  660.  The  discharge  of  cargo 
at  a  port  of  refuge  can  only  be 
authorised  when  it  is  indi-spensable 
for  the  repair  of  the  ship,  or  on 
account  of  damage  to  the  cargo, 
lu  these  cases  there  should  first  be 
obtained,  in  the  kingdom  and  its 
possessions,  an  authorization  by  a 
competent  judge,  and  abroad  an 
authorization  by  the  consular 
agent,  if  there  be  one,  and  if  not 
by  the  local  authority. 


THE  LAW  OF  PORTUGAL. 


649 


TIT.  I.  CAP.  VI. 

Do  Fretamento. 

Art.  547°.  Se  a  saida  do  iiavio 
para  o  porto  do  seu  destino  e  em- 
baragada  per  motivo  de  forga 
maior,  guerra,  bloqueio  ou  iuter- 
diguo  de  commercio,  ha  logar  a 
rescisao  do  freta-niento. 

§  unico.  Nos  cases  previstos 
iieste  artigo  nao  teiii  o  fretador 
direito  a  iudemuizagiio,  e  sao  por 
conta  do  afretador  as  despesas  da 
descarga. 


Art.  548°.  Se  o  impedimeuto  oe- 
correr  durante  a  viagom,  ha 
direito  ao  frele  pelo  caminho 
andado . 

§  unico.  Sendo  temporario  o  im- 
pedimento,  pode  o  afretador  des- 
carregar  as  fazendas,  fazendo-o  a 
sua  custa,  e  com  e  eondigao  de  as 
tornar  a  carregar  ou  de  indemnizar 
o  capitao,  prestando  num  e  noutro 
case  caugao,  quando  exigida. 


Art.  549°.  Estando  bloqueado  o 
porto  do  destino  do  navio,  ou 
dando-se  algum  case  de  forga 
maior  que  embarace  a  entrada  do 
navio  nesse  porto,  o  capitao  apor- 
tara  a  outro  porto,  ou  retrocedera 
aquelle  de  onde  saiu,  couforme  en- 
tender  que  e  mais  proveitoso  ao 
afretador. 

§  1°.  No  case  de  voltar  o  navio 
ao  porto  de  onde  saiu  vencera  o 


From  TIT  I.    CAP.   VI. 

Of  Affreightment. 

Art.  547.  If  the  departure  of 
the  ship  for  its  port  of  destination 
is  delayed  by  force  majeure,  war, 
blockade  or  interdiction  of  com- 
merce, the  contract  of  affreight- 
ment may  be  rescinded. 

§.  In  the  cases  provided  for  in 
the  present  Article  the  person  let- 
ting the  ship  is  not  entitled  to  an 
indemnity,  and  the  expenses  of  the 
discharge  are  payable  by  the 
charterer. 

Art.  548.  If  the  impediment  oc- 
curs in  the  course  of  the  voyage, 
freight  is  due  for  the  distance  run. 


§.  In  the  case  of  a  temporary 
impediment,  the  charterer  may 
have  the  goods  unloaded,  but  at 
his  own  expense,  and  on  condition 
that  he  will  reload  them  or  indem- 
nify the  captain.  In  either  case 
he  must  give  security,  if  required 
to  do  so. 

Art.  549.  If  the  port  of  destina- 
tion is  blockaded,  or  if  a  case  of 
force  majeure  prevents  him  from 
entering  it,  the  captain  must  go 
to  another  port  to  discharge  his 
cargo,  or  return  (d  the  port  from 
which  he  sailed,  as  he  thinks  most 
advantageous  lov  the  charterer. 


§   1.   If  the  ship  returns  to  the 
port  of  departure,  the  full  freight 


650 


APPENDIX  R. 


frete  da  ida  e  mais  um  lei'Qo  pelo  ,  is  due  for  the  outward  voyag-e,  plus 
regresso.  one-third  for  the  homeward  voy- 

age. 


§  2° .  Se  o  navio  aportar  a  outro 
porio,  vencera,  alem  do  frete  da 
ida,  tainbem  um  tergo  por  aquelle 
excesso  de  caminho. 


§  3°.  O  capitao  podera  tambem 
fazer  expedir  noutro  navio  as 
fazendas  ao  sen  destino,  sendo 
neste  caso  o  frete  a  cargo  dos 
afretadores. 

§  4°.  O  disposto  neste  artigo  e 
seus  paragraphos  entender-se-ha 
na  falta  de  ordens  recebidas,  ou 
sendo  estas  inexequiveis. 


Art.  555°.  O  frete  das  fazendas 
sacrificadas  para  salvagao  do  navio 
e  carga  sera  pago  integralmente  na 
conta  de  avaria  grossa. 

§  1°.  Tambem  se  pagara  por 
inteiro  o  frete  das  fazendas  que 
perecerem  na  viagem  por  vicio 
proprio,  ou  que  forem  vendidas  em 
seu  unieo  beneficio,  salva  a  dedue- 
Qao  das  despesas  que  por  motivo 
d'esse  evento  o  capitao  ficar  dis- 
pensado  de  effectuar. 

§  2°.  Sera  iguahuente  pago  por 
inteiro  o  frete  das  fazendas  appli- 
cadas  para  as  uecessidades  do 
navio,  se  este  chegou  a  bom  porto, 
salva  a  obrigagao  de  pagar  o  navio 
aos  donos  das  fazendas  o  valor  que 
ellas  teriam  no  porto  da  descarga. 


§  2.  If  the  ship  proceeds  to 
another  port,  in  addition  to  the 
outward  freight  one-third  is  also 
due  for  this  supplementary  voy- 
age. 

§  3.  The  captain  may  also  for- 
ward the  goods  to  their  destina- 
tion by  another  vessel,  the  freight 
in  this  case  being  payable  by  tlie 
charterers . 

§  4.  The  provisions  of  this 
Article  and  its  provisos  ap])ly 
when  orders  have  not  been  re- 
ceived or  when  they  cannot  be 
executed. 

Art.  555.  The  freight  of  gooda 
sacrificed  for  the  safety  of  the  sliip 
and  cargo  must  be  paid  in  full  as 
part  of  the  general  average. 

§  1.  So  also,  the  freight  of  goods 
which  j)erish  during  the  voyage 
through  inherent  vice,  or  are  sold 
solely  for  their  own  benefit,  is  paid 
in  full,  deducting  the  expenses 
which,  in  con.sequence,  the  captain 
will  not  have  to  incur. 


§  2.  The  same  rule  applies  to 
the  freight  of  goods  used  for  the 
purposes  of  the  ship,  if  she  reaches 
port  in  safety,  without  prejudice 
to  the  obligation  of  the  ship  to 
pay  to  the  owners  of  these  goods 
the  value  which  they  would  have 
had  at  the  port  of  discharge. 


THE  LAW  OF  PORTUGAL. 


6.)  I 


Art.  5')6°.  Se  o  capitao  e  obri- 
gado,  por  raotivo  de  caso  fortuito 
ou  de  forga  maior,  a  concertar  o 
navio  durante  a  viageiii,  e  o  al're- 
tador,  por  nao  querer  esperar  pela 
conclusao  do  coucerlo,  fizer  des- 
earregar  as  fazendas,  pagara  o 
frete  por  inteiro,  prestando,  porem, 
caugao  pela  quota  de  avaria  grossa 
a  que  as  fazendas  possani  estar 
obrigadas. 

Art.  Jo7°.  Nao  e  devido  irete  se 
o  afretador  provar  que  o  navio  era 
innavegavel  na  occasiao  de  einpre- 
hender  a  viageni  para  que  fora 
afretado. 


Art.  556.  If  the  captain  is 
obliged  by  accident  or  force  ina- 
jeure  to  repair  the  ship  in  the 
course  of  the  voyage  and  the 
freighter,  not  being  willing  to  wait 
until  the  repairs  arc  finished,  has 
the  goods  discharged,  he  must  pay 
the  full  freight  and  give  security 
for  the  contribution  in  general 
average  for  which  the  goods  will 
eventually  become  liable. 

Art.  557.  No  freight  is  due  if 
the  charterer  proves  that  the  ship 
was  unseaworthy  when  she  began 
the  voyage  for  which  she  was 
chartered. 


Art.  558°.  Nao  e  devido  frete, 
pelo  tempo  que  durarem  os  con- 
certos do  navio,  se  este  foi  afre- 
tado ao  mes  ou  por  periodo  deter- 
minado,  nem  aumento  de  frete,  se 
o  fretamento  foi  por  viagem. 


§  unico.  Tambem  nao  e  devido 
frete,  ou  aumento  de  frete,  se  o 
navio  e  deinorado  por  bloqueio  do 
porto  ou  por  outro  caso  de  forga 
maior. 

Art.  561°.  Nao  pode  o  capitao 
para  seguranga  do  frete,  avarias  e 
despesas  reter  as  fazendas  a  bordo, 
sendo-lhe  unicamente  licito  du- 
rante a  descarga  pedir  o  deposito 
das  que  forem  sufficientes  para 
aquelle  pagamento. 

Art.  562°.  Nao  se  podera  pedir 
a  reducgao  do  frete,  nem  aban- 
donar  ao  frete  as  fazendas  por 
motivo    de    demora    na    chegada, 


Art.  558.  No  freight  is  duo  for 
the  time  occupied  by  the  repairs 
of  the  ship,  if  she  was  chartered 
by  the  month  or  for  a  fixed  time,^ 
nor  any  increase  of  freight,  if  the 
contract  of  affreightment  was  for 
a  voyage. 

§.  Similarly  no  freight  or  in- 
crease of  freight  is  due,  if  the  .ship 
is  delayed  by  a  blockade  of  the 
port  or  by  other  circumstances  of 
force  majeure. 

Art.  561.  The  captain  cannot  re- 
tain the  goods  on  board  as  security 
for  his  freight,  average  or  his  dis- 
bursements; he  can  only  require 
the  deposit  of  a  sufficient  portioa 
to  secure  this  payment. 


Art.  562.  No  reduction  can  be 
demanded  from  the  freight,  nor 
can  the  goods  be  abandoned  for 
the   freight,  on  account  of  delay 


652 


APPENDIX  K. 


diminuigao  de  valor  ou  deteriora- 
^ao. 

§  unico.  No  caso  das  vasilhas 
que  contiverem  liquidos  se  esva- 
ziarem  por  mais  de  metade,  podem 
abandonar-se  ao  frete  essas  vasil- 
has e  o  seu  conteudo. 


in  arrival,  diminution  of  value  or 
deterioration. 

§.  In  case  vessels  containing 
liquids  have  leaked  to  the  extent 
of  half  their  contents,  they  may  be 
abandoned  with  their  contents  for 
the  freight. 


The  editors  have  been  informed  by  Senor  Don  A.  J.  Gomes  Netto, 
Junior,  Average-Adjuster,  of  Lisbon,  that  averag-e  adjustments  are 
rarely  made  on  the  basis  of  the  Portuguese  Law,  except  in  a  few  cases 
of  vessels  trading  between  Portuguese  ports.  As  a  rule,  the  parties 
agree  to  have  a  friendly  adjustment  made,  based  on  the  York-Antwerp 
Rules,  1890.  Consequently  there  has  been  scarcely  any  litigation  in 
the  Portuguese  Courts  on  questions  of  general  average.  Under  the 
Portuguese  practice,  says  Senor  Netto,  the  ship  and  the  freight  at  risk 
contribute  to  general  average  on  the  half  of  their  net  values,  as  fixed  by 
the  York-Antwerp  Rules,  1890,  but  the  whole  amount  made  good  for 
sacrifices  of  ship  and  freight  is  added  to  these  half  values;  and  this 
practice  has  been  confirmed  by  a  judgment  of  the  Tribunal  of 
Commerce . 


THE  LAW  OF  RUSSIA.  ^o-i- 


APPENDIX  S. 


THE  LAW  OF  RUSSIA. 

In  Russia  the  ancieut  laws  cozupiled  into  a  code  by  Catherine  II.  were 
revised  entirely  under  the  auspices  of  the  Czar  Nicholas  I.,  and  the 
present  Code,  the  Zvod  Zakonoff,  was  promulgated  in  1835. 

The  regulations  contained  in  this  Code  naturally  enough  are  by 
no  means  adequate  to  the  present  state  of  things  as  to  maritime  law, 
and  as  it  was  rumoured  that  important  changes  were  about  to  be 
introduced,  Mr.  Lowndes  applied  to  Mr.  Heimburger,  the  Official  Ad- 
juster at  St.  Petersburg,  for  information  as  to  this  point.  In  a  letter 
dated  June  29th,  1887,  the  latter  said  that  there  had  been  no  steps 
taken  to  alter  the  law  touching  average.  Mr.  Heimburger  thought  "  no 
change  in  the  law  regulating  general  average  will  be  contemplated 
before  the  reform  of  the  entire  legislation  regulating  commercial  ques- 
tions is  determined  upon."  He  added,  "  The  Russian  law  and  customs 
regulating  general  average  remain  exactly  as  represented  in  your  work, 
3rd  edition." 

Ulrich's  translation  which  Mr.  Lowndes  adopted  is  from  the  edition 
of  1881. 

Mr.  Heimburger  further  informed  Mr.  Lowndes  that  owing  to  the 
defective  state  of  the  law,  and  there  being  also  in  the  last  article  on 
average  the  following  clause, — "  In  case  of  any  circumstances  taking 
place  which  are  not  provided  for  by  these  regulations,  the  average- 
stater  is  to  adjust  them  according  to  the  laws  and  customs  of  adjacent 
states," — it  had  been  for  many  years  the  rule  acted  on  by  the  adjusters 
of  St.  Petersburg  and  Riga  that  the  customs  of  Hamburg  should  be 
taken  as  the  standard  for  adjustments.  These  customs  are  now  obso- 
lete in  Hamburg  itself,  that  city  having  adopted  the  German  Code. 

From  adjustments  of  recent  date,  drawn  up  by  the  same  eminent 
adjuster,  I  find  (said  Mr.  Lowndes)  that,  when  a  ship  is  obliged  to 
put  into  a  port  of  refuge  to  repair  damage,  whether  the  result  of  acci- 
dent or  sacrifice,  all  the  port  charges,  pilotages,  and  other  necessary 
expense,  as  well  of  entering  as  of  quitting  the  port,  together  with  the 


^54  APPENDIX  S. 

cost  of  discharging  the  cargo  and  reloading  it,  the  warehouse  rent  of 
the  cargo,  and  any  damage  it  may  necessarily  sustain  in  the  process 
of  discharging  or  loading,  are  admitted  into  general  average.  So  like- 
wise are  the  wages  and  provisions  of  the  crew;  not,  however,  as  in 
Holland  and  the  United  States,  from  the  time  of  bearing  up,  but  only 
during  the  actual  suspension  of  the  voyage — that  is  to  say,  from  the 
time  of  entering  the  port  of  refuge  until  she  sails  again. 

The  contribution  is  made  upon  the  entire  value  of  the  ship,  in  her 
damag-ed  condition;  on  one-half  of  the  entire  freight;  and  on  the  value 
of  the  cargo. 

[The  editors  have  submitted  this  Appendix  to  Mr.  Geo.  Jackson, 
Official  Adjuster,  St.  Petersburg,  who  wrote  on  the  lllh  February, 
1910,  as  follows:  — 

"I  have  carefully  looked  over  the  Appendix  relating  to  the  Law  of 
Hussia.  ...  In  the  meantime,  no  changes  have  taken  place  either 
in  the  Russian  Law  or  in  the  practice  generally,  although  tliere  is,  un- 
fortunately, a  growing  tendency  for  each  group  of  Russian  ports  to 
introduce  its  own  g-eneral  average  rules  or  customs,  especially  when 
new  questions  arise. 

'■'  Within  the  last  fifteen  years  several  drafts  of  a  new  law  of  general 
average  have  been  prepared,  but  matters  never  seem  to  get  beyond 
this." 

Mr.  Jackson  added  that  the  eorrectioiis  which  he  found  necessary 
to  make  in  the  text  were  chiefl}'  the  result  of  faulty  translation  from  the 
Russian.] 

Extracts  from  the  Code. 

§  1074.  Those  are  called  g-eneral  averages  to  the  vessel  or  mer- 
■chandise,  which  are  incurred  for  the  safety  of  the  vessel,  of  the  crew, 
and  the  cargo;  such  as  ransom  from  the  enemy,  damage  incurred  during 
defence  or  combat,  shipwreck  or  disaster,  cutting  away  anchor,  cable, 
masts,  or  rig-ging;  the  throwing  overboard  of  merchandise,  or  of  the 
cargo  or  any  other  object,  with  the  intention  of  lightening  the  ship  (a). 


{a)  "  At  this  point  we  may  discuss  those  cases  of  general  average  which  are  not 
expressly  regulated  in  the  mercantile  Code. 

"  (a)  Voluntary  stranding. — If  a  ship  has  been  purposely  run  ashore  to  save  ship  and 
cargo  from  a  common  danger,  then,  provided  she  is  brought  off  again,  any  damages 
caused  by  the  stranding,  including  the  bringing  off,  as  well  as  the  costs  of  bringing 
off,  are  compensated  on  the  principles  of  general  average.  If  the  ship  had  been  drifting 
ashore  already,  and  the  captain  merely  selects  the  most  advantageous  spot  for  running 
ashore,  this  no  longer  entitles  to  general  average.  (Gourlie,  p.  141.)  Anchors,  chains, 
or  sails  which  are  damaged  in  the  attempts  to  get  off  are  made  good  in  general 
average ;  also  the  fuel  and  engine-material  consumed  for  that  purpose.  There  is  an 
uncertainty  whether  the  wages  and  maintenance  of  the  crew  during  the  detention  at 


THE  LAW  OF  RUSSIA.  655 

§  1075.  The  losses  caused  by  these  general  averages  are  borne  by 
all  who  have  an  interest  in  the  ship  or  cargo.  The  division  of  this  lo.ss 
is  effected  by  contribution. 

■  §  1076.  The  injury  that  the  ship  or  cargo  sustains  by  the  effects  of 
bad  weather  is  ranked  as  particular  averag-e.  (A.rt.  1071.)  But  if  it 
should  occur  that,  through  the  violence  of  the  tempest,  a  mast  is 
broken  (b),  and  must  be  cut  down  to  save  ship  and  cargo,  and  that  the 
lower  portion  of  it  remains  in  good  condition  in  the  vessel,  the  injury 
is  looked  upon  as  a  general  average. 

§  1077.  If,  to  escai^e  danger,  or  to  save  ship  and  cargo  from  wreck 
or  foundering,  an  anchor,  cable,  or  mast,  or  any  other  rigging  must  be 
cut  away,  the  captain,  if  it  be  practicable,  shall  give  the  first  stroke  of 
the  hatchet,  and  in  default,  the  pilot,  the  mate,  or  two  or  three  of  the 
crew.  If  it  becomes  necessary  to  throw  overboard  part  of  the  cargo,  it 
is  the  duty  of  the  supercargo,  if  one  is  on  board,  to  perform  this  duty 
first.  In  ca.se  he  refuses,  and  the  captain  finds  the  jettison  absolutely 
necessary,  he  may  order  some  of  the  men  to  throw  cargo  overboard.  In 
such  cases,  as  far  as  circumstances  will  permit,  goods  of  the  lowest 
value  should  be  thrown  overboard  first,  in  order  to  spare  tlie  more  valu- 
able . 

§  1078.  If  there  be  found  on  a  merchant  ves.sel  artillery,  ammuni- 
tion, provender,  or  any  other  object  for  the  service  of  war,  on  land  or  at 


the  place  of  stranding  belong  to  general  average  or  not.  It  is  decided  in  the  aflBrma- 
tive  by  Gourlie,  p.  729. 

"  (b)  Press  of  sail.— Bamages  hereby  caused  to  the  ship,  her  appurtenances,  or  to  the 
cargo  are  not  usually  paid  by  general  average,  even  if  the  press  of  sail  has  been  put  on 
to  avoid  capture  or  stranding. 

"  (c)  Fort  of  refuge  expenses.— li  a  ship  has  to  put  in  because  she  cannot  continue  her 
voyage  owing  to  .'-erious  disaster,  it  is  general  average,  without  di.stinction  whether  the 
damage  to  the  ship  itself  belonged  to  general  or  particular  average.  In  such  a  case 
general  average  includes— costs  of  going  in  and  going  out ;  harbour  dues  ;  wages  and 
maintenance  of  the  crew  from  the  moment  when  the  ship  runs  in  until  the  ship  is 
again  ready  to  sail.  If  the  cargo  cannot  remain  on  board  while  the  repairs  are  effected, 
then  to  general  average  belong:— the  costs  of  discbarge  and  re-loading;  the  costs 
ashore  of  taking  care  of  it ;  the  loss  necessarily  consequent  on  discharging  and  re- 
loading ;  but  not  any  damage  caused  during  the  warehousing  by  fire  or  water. 
Adjusters  generally  include  in  general  average  the  costs  of  fire  insurance  and  of 
preserving  the  cargo.  Sometimes  in  South  Eussia  the  costs  during  the  voyage  to  the 
port  of  refuge  are  distributed  in  general  average."     (Ulnch,  p.  252.) 

[b)  "The  wording  of  this  rule  is  obscure.  If  a  mast  is  broken  by  a  storm  and  gets 
lost,  this,  according  to  Art.  1071,  is  particular  average.  But  if  the  mast  is  broken  by 
a  storm,  and  from  the  beating  of  its  fragments  against  the  ship's  side,  a  new  common 
danger  to  ship  and  cargo  sets  in,  so  that  it  is  necessary  to  get  rid  of  the  debris  by 
cutting  away,  then  the  value  of  these  is  to  be  made  good  in  general  average,  if  the 
stump  of  the  mast  that  remains  seems  sound.  This  is  evidently  the  meining-  of 
Art.  1076  (conf.  Art.  1091)."     (Ulrich,  p.  253.) 


656  APPENDIX  S. 

sea,  belonging  to  the  Crown;  at  the  last  extremity  these  may  be  thrown 
overboard,  if  by  such  means  the  remainder  can  be  saved. 

§  1079.  If,  to  escape  danger,  to  save  the  v^essel  or  cargo,  or  to  lighten 
the  ship,  a  portion  of  the  goods  must  be  thrown  overboard,  and 
the  opening  of  the  hatches  occasions  damage  to  the  rest  of  the  cargo, 
this  injury  is  looked  upon  as  general  average,  and  must  be  supported 
by  contribution.     (Art.  1075.) 

§§  1080  and  1081.  It  is  the  same  at  the  time  of  defence  against  the 
enemy  or  pirates,  as  respects  the  damage  done  to  the  vessel,  or  the 
wounds  or  death  of  the  crew,  as  to  the  indemnity  due  in  this  case. 

§§  1082  and  1083.  It  is  also  the  same — 1st,  when  the  vessel  is  ran- 
somed from  the  enemy  or  pirates;  but  if  he  who  ransoms  her  is  a 
prisoner,  the  captain  is  obliged  to  pay  without  delay  the  price  of  the 
ransom;  2nd,  when,  in  the  case  of  necessity  for  entering  a  port,  a 
lighter  (c)  or  some  other  vessel  must  be  hired. 

§  1084.  If,  after  transferring  the  merchandise  into  a  lighter,  or  other 
boat,  in  order  to  escape  danger,  to  save  or  to  lighten  the  ship,  such  boat 
or  lighter  is  lost  or  damaged,  and  the  vessel  enters  the  port  without 
cargo,  the  damage  is  general.  But  if  it  be  the  vessel  which  is  lost  or 
damag-ed,  and  not  the  lighter  or  merchandise,  the  loss  does  not  bear  the 
same  character.  For  the  ship  is  lost,  but  the  cargo  remains  for  him. 
to  whom  it  belongs  (d^). 

§  1085.  If  the  vessel  or  merchandise  have  become  damag-ed  through 
carelessness  or  imprudence  of  the  captain  or  his  crew  at  the  time  of 
loading  or  unloading,  or  at  the  time  of  stowing  in  the  hold;  if  the 
hatches  have  not  been  closed,  or  the  water  emptied  at  seasonable  times; 
the  losses  which  result  shall  be  accounted  for  by  the  captain  and  crew, 
who  shall  repair  them,  each  in  proportion  to  the  amount  of  his  pay. 

§  1086.  If  the  captain  takes  merchandise  on  board  without  the- 
charterer's  knowledge  or  consent,  and  such  merchandise  is  partly  or 
entirely  thrown  overboard  or  damaged,  the  charterer  ought  not  to 
contribute  to  the  general  average  on  these  goods. 

§  1087.  If  the  captain  has  overcharged  his  vessel  beyond  the  load- 
water-line,  and  if,  in  case  of  dang-er,  to  save  or  lighten  the  vessel,  he 


(c)  "  If  the  lighterage  occurs  in  the  regular  course  of  the  voyage,  it  is  not  general 
average  (Art.  1069)."     (Ulrich,  p.  255.) 

(d)  "  On  the  other  hand,  there  is  a  community  of  interest  between  the  goods  laden 
in  lighters,  and  these  boats,  so  that,  if  duriug  their  community  a  .sacrifice  for  the 
common  safety  takes  place,  both  lighters  and  cargo  and  the  lighter-hire  must  contribute 
to  make  good  the  sacrifice."     (Ulrich,  p.  255.) 


THE  LAW  OF  RUSSIA.  657 

throws  overboard  a  portion  or  the  whole  of  the  merchandise,  the  goods 
thus  thrown  overboard  are  not  considered  as  averages,  but  the  captain 
and  shipowner  should  pay  the  entire  loss. 

§  1088.  If  carg-o  properly  stowed  in  the  ship's  hold  has  to  be  thrown 
overboard  to  lighten  the  ship,  this  is  considered  general  average.  But  if 
goods  put  into  the  cabin  or  in  the  crew's  places  or  between  decks,  or  on 
deck,  or  about  anywhere,  are  jettisoned,  they  do  not  count  as  general 
average,  but  in  this  case,  each  party  bears  his  own  loss(e).  But  if 
the  captain  keeps  money,  metals,  or  other  valuable  articles  in  his  cabin 
for  better  preservation,  or  any  other  motive,  and  if  to  lighten  the  vessel 
he  throws  other  tilings  away  in  their  stead,  these  objects  must  contri- 
bute to  the  g-eneral  average  the  same  as  the  rest. 

§  1089.  If  any  one  takes  on  board  with  him  any  goods,  valuable  or 
otherwise,  without  declaring  them  to  the  captain,  without  having  taken 
a  receipt  for  them,  or  paid  their  carriage,  he  alone  bears  the  loss,  in  case 
of  loss  at  sea  or  jettison. 

§  1090.  If  the  captain  who  has  experienced  bad  weather  at  sea  has 
reason  to  fear  that  the  goods  have  been  damaged,  he  ought,  before 
opening  the  hatches,  witliin  four-and-twenty  hours  after  his  arrival,  to 
notify  before  a  notary  public  and  inform  the  custom  house  authorities. 
Then  within  seven  days  of  his  arrival  he  must  extend  his  protest  before 
the  notary,  and  make  a  declaration  on  oath  before  two  sworn  witnesses. 
The  same  must  be  done  by  the  mate,  the  carpenter,  and  two  or  more  of 
the  crew,  who  must  affirm  that  the  damage  has  not  arisen  from  their 
negligence  or  carelessness.     (Conf.  Art.  203.) 

§  1091.  The  same  formalities  are  to  be  observed  when,  in  conse- 
quence of  a  storm,  a  mast  has  been  cut  away,  and  the  merchandise 
thrown  entirely  or  partially  into  the  sea. 

§  1092.  The  merchandise  should  not  be  delivered  to  the  consignees 
before  the  general  averages  are  regulated.  It  remains  for  that  purpose 
under  the  care  of  the  Customs  until  they  are  regulated. 

§  1093.  The  contributory  values  are  established  by  valuing  the  vessel 
and  cargo,  including  goods  jettisoned,  at  the  prices  they  would  have 


{e)  "  Deck  cargo  jettisoned  i.s  not  made  good  by  general  average,  whether  the 
jettison  took  place  in  a  long  voyage,  or  a  coasting  trip.  If  water  cask.s  on  the  deck 
are  throv/n  over  for  the  cQintuou  good,  their  value  is  compensated  in  general  average^ 
deducting  a  third  for  the  difference  between  new  and  old."     (Ulrich,  p.  2J7.) 

L.  U  U 


658  APPENDIX  S. 

fetched  at  the  place  of  disc-harge,  deduetiug-  customs,  freig-lit,  discharge- 
costs,  and  carriage  to  the  Custom  House  (/).  But  if  any  one  declares 
a  value  less  than  the  actual  one,  it  is  not  forbidden  to  another  party  to 
demand  that  which  has  been  declared  at  that  price,  adding  three  per 
03nt.  to  its  declared  value,  upon  which  it  shall  be  delivered  to  him  on 
payment  of  duties,  freight,  discharge-costs,  and  carriage  to  the  Custom 
House . 

§  1094.  If  the  captain  and  the  crew  have  faithfidlj  defended  the 
vessel,  their  rewards  are  counted  as  g-eneral  average.  Thus,  he  who  is 
not  wounded  receives  six  months'  pay;  the  wounded  man  a  twelve- 
month's pay;  he  who  has  lost  a  limb,  two  years';  and  two  years'  pay  to 
the  heirs  of  the  seaman  who  dies  from  his  Avounds.  The  costs  of  heal- 
ing the  wounded  are  also  treated  as  general  average. 

§  1095.  If,  dm-ing  the  voyage,  the  ship  has  .suffered  too  severely  to 
be  enabled  to  continue  the  voyag-e  to  her  final  destination,  and  the  cap- 
tain should  be  compelled,  in  order  to  repair  her,  to  enter  another  port. 


(/)  "With  regard  to  conrpcnsatiov  for  thiiigs  sacrificed  we  must  observe,  that  the  full 
amoiiBt  of  the  costs  of  repairs  to  the  ship  is  made  good,  if  at  the  time  of  the  damage 
she  had  not  been  a  full  year  at  sea.  The  same  holds  good  of  compensation  for 
individual  parts  of  the  ship,  whilst  individual  portions  of  the  ship's  furniture  are  only 
fully  compensated  as  far  as  they  have  been  sacrificed  on  their  first  voyage.  In  other 
<;ases  a  third  for  difference  between  new  and  old  must  be  deducted  from  the  full 
amount,  but  for  anchor  chains  one  sixth,  and  for  anchors  themselves  nothing. 

"  Compensation  for  goods  sacrificed  is  to  be  reckoned  at  the  market  price  which  goods 
of  like  kind  and  quality  would  fetch  at  the  place  of  destination,  or  where  the  voyage 
ends.  A  deduction  of  freight,  customs,  and  costs,  only  takes  place  when  these  sums 
have  been  saved  by  the  loss  of  the  goods.  If  the  cargo  was  already  damaged  before 
it  was  jettisoned,  only  that  value  which  it  had  in  its  damaged  state  is  to  be  made  good. 

"  For  goods  sold  to  cover  general  average  expenses  on  the  way  the  owners  of  cargo 
receive  the  market  price  at  the  place  of  destination,  and  pay  full  freight  to  the 
.shipowner. 

"Art.  1061.  If  on  the  way,  in  order  to  repair  his  vessel  or  to  purchase  necessary 
victuals,  the  captain  has  to  get  monej-,  either  by  pledging  cargo,  or  selling  or  bartering 
.some  of  it,  he  must  pay  the  owners  thereof,  or  whom  it  may  concern,  the  same  price 
they  would  have  fetched  at  the  place  they  were  undertaken  to  be  conveyed  to.  But 
the  owner  of  the  goods  must  pay  to  the  captain  the  full  freight  agreed,  just  as  if  the 
goods  had  reached  their  proper  destination. 

"  Compensation  for  freight  lost  must  u.sually  be  regulated  by  the  amount  agreed  in 
the  bin  of  lading  for  the  carriage  of  the  jettisoned  goods. 

"Concerning  contrihutorij  values  the  adjusters  at  St.  Petersburg  and  Riga  are 
accustomed  to  be  riiled  by  the  German  Code.  Still,  sometimes  in  Russia  adjustments 
are  drawn  up  in  which  the  freight  contributes  only  on  the  half  of  its  gross  amount." 
(Ulrich,  p.  2.59.) 


THE  LAW  OP"  RUSSIA.  659 

and  if  the  repairs  cannot  be  completed  in  .suffiiiciit  time  to  enable  him 
to  arrive  at  the  period  agreed  upon,  and  such  delay  occa.sions  damage  to 
the  owner  of  the  merchandise  or  cargo,  the  captain  is  authorized  to  hire 
another  vessel  at  a  reasonable  rate.  In  this  case  two-thirds  of  the 
jf  amount  of  freight  are  paid  by  the  captain,  and  the  other  third  is  borne 

by  the  owner  of  the  cargo.  The  captain  who  shall  have  conveyed  the 
merchandise  to  its  destination  receives  one-half  of  the  primage,  and  the 
other  half  remains  to  the  captain  who  trauj^ferred  the  merchandise 
to  him. 


U  u  2 


660 


APPENDIX  T. 


APPENDIX  T. 


-♦ — 


THE  LAW  OF  SPAIN. 

The  Law  of  Spain  on  the  subject  of  general  average  is  contained 
in  the  Codigo  de  Comercio  of  1885,  which  came  into  force  on  the 
Ist  January,  1886. 

It  might,  said  Mr.  Lowndes,  have  been  hoped  that  a  legalization 
of  practices  conforming  to  the  York-Antwerp  rules  would  here  have 
been  found,  and  that  some  verbose  and  now  obsolete  regulations  woidd 
have  been  quietly  dropped.  But  this  is  not  the  case:  Spain  is  content 
for  the  present  neither  to  lead  nor  to  follow.  The  editors  have,  how- 
ever, been  informed  by  Senor  Francisco  Beck,  averag-e  adjuster,  of 
Barcelona,  that  in  the  case  of  vessels  coming  from  abroad,  it  is  usual 
to  make  the  adjustment  in  accordance  with  the  York-Antwerp  rules. 
Even  when  these  rules  are  not  incorporated  in  the  charterparty  or 
bills  of  lading,  the  average  bond  generally  stipulates  that  they  shall 
bo  followed. 


TIT.  IV.  SECT.  I. 
De  las  Averias. 
§  811.  Seran  averias  gruesas  6 
comunes  par  regla  general  todos 
los  danos  y  gastos  que  se  causen 
deliberadameute  para  salvar  el 
buque,  su  cargamento  6  ambas 
cosas  a  la  vez,  de  un  riesgo  cono- 
cido  y  efectivo,  y  en  particular  las 
siguientes: 

la.  Los  efectos  6  metalico  in- 
vertidos  en  el  rescate  del  buque  6 
del  cargamento  apresado  por  en- 
emigos,  corsarios  6  piratas,  y  los 
alimentos,  salaries  y  gasto  del 
buque  detenido  mienfras  se  hiciere 
el  arreglo  6  rescate. 


TIT.  IV.  SECT.  I. 
Of  Average. 
§  811.  Gross  or  general  average 
consists  as  a  general  rule  of  all 
losses  and  expenses  which  are 
purposely  incurred  to  save  ship, 
her  cargo,  or  both  together,  from 
an  expected  and  real  danger;  and, 
in  particular,  of  the  following: 


1.  Property  or  money  used  for 
the  ransom  of  ship  or  cargo 
captured  by  enemies,  corsairs,  or 
pirates;  and  maintenance,  wages 
and  ship's  expenses  during  the 
settlement  of  the  ransom. 


THE  LAW  OF  SPAIN. 


661 


2*.  Los  efectos  arrojados  al  mar 
para  alig^rar  el  buque,  ya  per- 
tenezcan  al  cargamento,  ya  al 
buque  6  a  la  tripulacion,  y  el  dano 
que  por  tal  acto  resulte  a  los  efectos 
que  se  couserven  a  bordo. 

3a.  Los  cables  y  palos  que  se 
corten  6  inutilicen,  las  anclas  y  las 
cadenas  que  se  abandonen  para 
salvar  el  cargamento,  el  buque  6 
ambas  cosas. 

43-.  Los  gastos  de  all  jo  6  tras- 
bordo  de  una  parte  del  cargamento 
para  alig-erar  el  buque  y  ponerlo 
en  estado  de  tomar  puerto  6  rada, 
y  el  perjuicio  que  de  ellos  resulte 
a  los  efectos  alijados  6  tras- 
bordados. 


5^.  El  dano  causado  a  los  efectos 
del  cargamento  por  la  abertura 
hecha  en  el  buque  para  desaguarlo 
e  impedir  que  zozobre. 

6^.  Los  gastos  hechos  para  pouer 
a  flote  un  buque  encallado  de  pro- 
posito  con  objeto  de  salvarlo. 

7^.  El  dano  causado  en  el  buque 
que  fuere  necesario  abrir,  aguje- 
rear  6  romper  para  salvar  el  car- 
gamento. 


2.  Property  thrown  overboard  to 
lighten  a  ship,  whether  belonging 
to  cargo,  ship,  or  crew,  and  any 
damage  resulting  from  this  opera- 
tion to  the  property  which  remains 
on  board. 

3.  Cables  and  masts  cut  away  or 
made  useless,  anchors  and  chains 
abandoned,  in  order  to  save  cargo, 
ship,  or  both  (a). 


4.  The  cost  of  lighterage  or 
transhipment  of  part  of  the  cargo 
to  lighten  the  ship  and  enable  her 
to  enter  a  port  or  roadstead,  and 
any  damage  resulting  therefrom  to 
the  goods  discharged  or  tran- 
shipped. 

5.  Damage  caused  to  the  cargo 
by  making  an  opening  in  the  ship 
to  get  rid  of  the  water  and  prevent 
her  foundering. 

6 .  The  expense  of  floating  a  ship 
which  has  been  stranded  purposely 
to  save  her  (b). 

7.  Damage  done  to  a  ship  from 
being  necessarily  opened,  pierced, 
or  broken,  to  save  the  cargo. 


(a)  "  Damage  to  ship  and  her  belongings  by  press  of  sail  is  usually  compensated  as 
general  average  when  the  press  of  sail  has  been  put  on  to  escape  from  AVTeck  or 
capture."     (Ulrich,  p.  157.) 

{b)  "  If  the  ship  has  been  purposely  run  ashore  in  order  to  avert  danger  of  wreck, 
or  of  capture  of  ship  and  cargo,  then  the  damages  incurred  both  by  the  stranding  and 
the  getting  off  are  counted  as  general  average.  (Gomez  de  la  Suna  y  Reus  y  Garcia, 
p.  345,  Obs.  3;  and  J.  H.  Gourlie,  Jr.  p.  142.)"— (Ul.  p.  157.) 


662 


APPENDIX  T. 


8^.  Los  gastos  de  curacion  y  ali- 
mento  de  los  tripulantes  que  hu- 
bieron  sido  heridos  6  estropeados 
defendiendo  6  salvando  el  buque. 

9a.  Los  salarios  de  cualquier  in- 
dividuo  de  la  tripulaciou  detenido 
en  rehenes  por  enemigos,  corsarios 
6  piratas,  y  los  gastos  necesarios 
que  cause  en  su  prision  liasta  res- 
tituirse  al  buque  6  a  su  domicilio 
si  lo  prefiriere. 

IQa.  El  salario  y  alimeutos  de  la 
tripulacion  del  buque  fletado  por 
meses,  durante  el  tiempo  que  estu- 
viere  embargado  6  detenido  por 
fuerza  mayor  u  orden  del  Gobierno, 
6  para  reparar  los  danos  causados 
en  beneficio  comun. 

11a.  El  meuoscabo  que  resultare 
en  el  valor  de  los  generos  vendidos 
en  arribada  f orzosa  para  reparar  el 
buque  por  causa  de  averia  gruesa. 


122'.  Los  gastos  de  la  liquidacion 
de  la  averia. 


8.  The  cost  of  cure  and  mainte- 
nance of  members  of  the  crew 
wounded  or  maimed  in  defence  of 
the  ship  (c). 

9.  The  wages  of  any  of  the  crew 
detained  as  hostage  by  enemies, 
corsairs,  or  pirates,  and  the 
expenses  necessarily  incurred 
through  his  detention,  until  he  is 
restored  to  the  ship,  or  to  his 
home  if  he  wishes. 

10.  The  wages  and  maintenance 
of  the  crew  of  a  ship  freighted  by 
the  month  while  she  is  under  em- 
bargo, or  detained  by  vis  vmjor 
or  order  of  State,  or  to  repair 
damag-e  caused  for  the  common 
benefit  {d). 

11.  The  loss  caused  by  selling 
goods  at  a  port  of  refuge,  to  raise 
funds  to  repair  the  ship's  damage 
caused  by  a  general  average  dis- 
aster (e). 

12.  The  expense  of  adjusting  the 
average . 


(c)  "  Eveu  the  damage  caused  to  the  ship  by  the  defence  belongs  to  general  average." 
(in.  p.  157.) 

{d)  "  Wages  and  maintenance  of  the  crew  will  not  be  compensated  in  general 
average  (even  if  the  putting  in  was  in  consequence  of  a  general  average  sacrifice)  if 
the  charter-party  was  signed  for  the  voyage.  The  compensation  for  these  costs, 
according  to  the  principle  of  general  average,  never  takes  place  if  the  ship  has  put  in 
in  consequence  of  a  particular  damage,  whether  chartered  for  the  voyage  or  by  the 
month."     (TJl.  p.  158.) 

{e)  "  The  loss  on  goods  sold  during  the  voyage  belongs  sometimes  to  general,  some- 
times to  particular  average  (Art.  809.6),  according  as  the  proceeds  were  expended  to 
cover  a  general  or  a  particular  average  damage.  In  case  of  general  average,  the 
shipper  can  claim,  not  the  net  proceeds  in  a  port  of  refuge— which  may  be  hig-her  or 
lower  than  the  value  in  the  port  of  destination — but  the  value  of  goods  sold  at  the  port 
of  destination.  Since,  according  to  Art.  059,  full  freight  is  to  be  paid  to  the  shipowner, 
then  the  freight  of  the  value  aforesaid  ought  not  to  be  curtailed  to  the  shipper." 
(UI.  p.  158.) 


THE  LAW  OF  SPAIN, 


m'i 


§  812.  A  satisfacer  el  importe  de 
las  averias  g-ruesas  6  coraunes  con- 
triburan  todos  los  iuteresados  en 
el  bu<[ue  y  carganieiito  existeiite  en 
el  al  tiempo  de  ocurrir  la  averia. 

§  809.  Seran  averias  simples  6 
particulares,  por  regla  general,  to- 
dos  los  gastos  }•  porjuicios  causados 
eu  el  buque  6  en  su  cargamento  rpie 
no  hayan  redundado  en  benefieio 
y  utilidad  comun  de  todos  los  in- 
teresados  en  el  buque  y  su  carga,  y 
es])ecialmente  In.-;  siguientes: 

1".  Los  dancs  que  sobrevinieren 
al  cargamento  desde  su  embarque 
liasta  su  descarga,  asi  por  vicio 
propio  de  la  cosa  eomo  por  acci- 
dente  de  mar  6  pov  fuerza  mayor, 
y  los  gastos  hechos  para  evitarlos 
y  repararlos. 

2a.  Lo8  dafios  y  gastos  que  sobre- 
vinieren al  buque  en  su  casco,  apa- 
rejos,  armas  y  pertrechos  por  las 
mismas  causts  y  motivos,  desde  que 
86  hizo  a  la  mar  en  el  puerto  de 
salida  hasta  que  anclo  y  fondeo  en 
el  de  su  destine . 

3".  Los  danos  sufridos  per  las 
mercaderias  cargadas  sobre  cubi- 
erta,  excepto  en  la  navegacion  de 
cabotaje,  si  las  ordonanzas  mariti- 
mas  lo  pcrmiten. 

4^.  Los  sueldos  y  alimentos  de  la 
tripulacion  cuando  el  buque  fuere 
detenido  6  embargado  por  orden 
legitima  6  fuerza  mayor,  si  el 
fletamcnlo  estuviere  contratado 
por  un  tanto  el  viaje. 


§  812.  All  parties  intere-stod  in 
the  ship  and  the  cargo  on  board 
of  her  at  the  time  of  the  average 
disaster  must  contribute  to  make 
u])  the  amount  of  general  average. 

§  809.  Sinij)leor  particular  aver- 
age consists  generally,  of  all  ex- 
]iensos  and  damag-e  caused  to  ship 
or  cargo,  which  have  not  been  in- 
tended for  the  common  benefit  or 
use  of  all  the  parties  interested  in 
ship  and  cargo;  and  especially  of 
the  following: 

1 .  An}-  damage  happening  to 
the  cargo,  from  its  loading  to  its 
discharge,  either  resulting  from 
vice  propre,  or  accident  of  the  sea, 
or  vis  major,  and  any  expenses  in- 
curred to  avoid  or  repair  such 
damage . 

2.  Any  damage  or  expen.se  oc- 
curring to  the  ship,  her  hull,  ap- 
parel, equipment,  and  stores,  from 
the  same  causes,  from  the  time  of 
going  to  sea  at  the  port  of  depar- 
ture till  casting  anchor  at  that  of 
destination. 

3.  Damage  done  to  any  goods 
laden  on  deck,  excepting  in  the 
coasting  trade,  if  the  maritime  re- 
gulations allow  it. 

4.  Wages  and  maintenance  of 
crew,  if  the  ship  is  detained  or 
under  eml)argo  by  order  of  State 
or  vis  major,  if  she  is  freighted 
at  so  much  for  the  voyage  (/) . 


(/)  "  Board  and  wages  of  the  crew  during  their  detention  in  a  harbour  of  refuge 


t)64 


APPENDIX  T. 


5a.  Los  g-astos  necesarios  de  ar-  5.  The  necessary  expenses  of 
ribada  a  un  puerto  para  repararse  putting  into  a  port  of  refuge  to  be 
6  aprovisionarse .  1  repaired  or  to  victual  (^). 


6^.  El  menor  valor  de  los  gene- 
ros  vendidos  por  el  capitan  en  arri- 


6.  The  loss  resulting  from  sell- 
ing goods  at  a  port  of  refuge,  in 


bada  forzosa,  para  pago  de  ali-  ^  order  to  pay  for  provisions  and 
nientos  y  salvar  a  la  tripulacion,  6  provide  for  the  safety  of  the 
para  cubrir  cualquiera  otra  necesi-     crew,  or  to  cover  any  other  neces- 


"belong — if  the  charter-party  is  drawn  up  for  the  voyag-e— not  to  general  average 
either,  if  the  ship  has  met  on  the  way  so  severe  a  particular  damage  that  she  had  to 
put  into  a  port  of  refuge  and  get  repaired  there,  since  otherwise  by  contiuuiiig  her 
voyage  w-ithout  i-epairing  the  damage,  ship  and  cargo  would  have  been  threatened 
■with  a  common  danger. 

"If  the  ship  has  been  chartered  by  time,  then  the  wages  and  board  of  the  crew 
during  the  continuance  of  the  embargo  or  detention  by  higher  power  must  be  counted 
as  general  average.     (Conf.  Art.  811.10.)"— (Ul.  p.  154.) 

[g)  "  This  rule  does  not  distinguish  between  the  cases,  whether  the  damage  to  the 
hull  or  to  parts  of  the  ship  or  rigging  has  resulted  from  bad  weather,  or  in  consequence 
of  a  voluntary  sacrifice  made  by  the  captain  with  the  view"  of  saving  ship  and  cargo 
from  a  common  danger.  The  costs  of  running  into  a  port  of  refuge  must  always  be 
regarded  as  particular  average,  if  the  putting  in  has  taken  place  with  the  object  of 
repairing  the  ship  or  replacing  rigging.  Even  so  Art.  821  orders  that  the  costs  of  a 
forced  putting  in  [arrihada  forzosa)  always  go  to  shipowners  or  the  party  who  lets  out 
the  ship  on  hire.  One  may  be  justified  in  assuming  that  the  intention  of  the  legisla- 
ture was  never  to  allow  the  costs  of  running  into  a  port  of  refuge  in  general  average. 
Nevertheless,  Spanish  adjusters  frequently  divide  these  costs  in  the  general  average 
statements  among  ship,  freight,  and  cargo,  if  the  ship  has  put  into  the  port  of  refuge 
in  order  to  avoid  a  danger  threatening  both  ship  and  cargo  in  common  should  the 
voyage  have  been  continued  ;  and  they  appeal  to  corresponding  decisions  in  Court, 
only  indeed  in  the  lower  Courts.  This  method  of  procedure  can  scarcely  be  approved 
by  the  higher  Courts,  because  it  is  contrary  to  the  codified  law.  This  contrariety  of 
practice  among  the  adjusters  is  not  justified  by  the  definition  of  general  average  given 
in  Spanish  Law,  for  in  this  an  actually  present  [efectivo)  danger  is  contemplated,  and 
not  one  that  is  threateuiug  in  case  of  the  voyage  being  continued. 

"The  Code,  811.10,  also  only  allows  the  wages  and  maintenance  of  the  crew  of  a 
vessel  chartered  by  the  month,  as  general  average,  if  the  repaii's  must  be  effected  of 
damages  purposely  caused  in  the  common  interests  of  all  parties  concerned.  (Conf.  the 
work  of  J.  H.  Gourlie,  Jun.,  Philadelphia,  1881,  pp.  271 — 274,  and  the  commentary 
on  the  Spanish  Mercantile  Code  by  Senors  Pedro  Gomez  de  la  Sema  and  J.  Reus  y  Garcia, 
Madrid,  1875,  p.  373,  Ob.  5.)"— (Ul.  p.  154.) 

"  I  cannot  say,"  observed  Mr.  Lowndes,  "  that  I  agree  with  Herr  Ulrich's  reasoning 
or  anticipation  here.  Spain  is  always  much  influenced  by  France,  and  under  precisely 
similar  conditions,  where  the  Code  de  Commerce  had  laid  down  a  rule  for  putting  into 
port  which,  like  that  of  Spain,  was  in  terms  contrary  to  the  principle  of  general 
average  as  laid  down  in  the  same  Code,  the  Cour  de  Cassation  found  a  method  of 
breaking  through  the  letter  to  the  spirit,  similar  to  that  adopted  in  the  lower  Courts 
of  Spain,  and  to  a  great  extent  acted  on  in  practice." 


THE  LAW  OF  SPAIN. 


665 


dad  del  buque,  a  cuyo  cargo  vendra 
el  abono  correspondiente . 


7*.  Los  alimentos  j  salario  de  la 
tripulacion  mientras  estuviere  el 
buque  en  cuarantena. 


8^-.  El  dano  inferido  al  buque  6 
<;arg-amento  por  el  choquo  6  abor- 
-daje  con  otro,  siendo  fortuito  e  in- 
evitable . 

Si  el  accidente  occurriere  por 
culpa  6  descuido  del  capitan,  este 
respondera  de  todo  el  dano 
-causado . 


9^^.  Cualquier  dano  que  resultare 
al  cargamento  por  faltas,  descuido 
6  baraterias  del  capitan  6  de  la 
tripulacion,  sin  perjuicio  del  de- 
recho  del  propietario  a  la  indem- 
nizacion  correspondiente  contra  el 
<;apitan,  el  buque  y  el  flete. 


sities  of  the  ship,  in  which  case 
the  loss  resulting  from  the  sale 
shall  be  borne  by  the  ship(/i). 


7.  Maintenance  and  wages  of 
the  crew  whilst  the  ship  is  in 
quarantine  (i). 


8.  Damage  to  ship  or  cargo  by 
striking  or  collision  with  another, 
if  accidental  and  unavoidable. 

If  the  accident  arises  from  fault 
or  carelessness  of  the  captain,  he 
will  be  responsible  for  all  result- 
ing damage. 


9 .  Any  damag-e  happening  to  the 
cargo  from  the  fault,  carelessness, 
or  barratry  of  captain  or  crew, 
without  prejudice  to  the  owners 
right  to  claim  corresponding  com- 
pensation from  captain,  ship,  and 
freight. 


(h)  "  If  goods  have  to  be  sold  on  the  way  to  meet  the  needs  of  the  ship,  the  parties 
concerned  in  the  cargo  have  a  claim  to  compensation  for  the  amount  which  goods  of 
the  same  kind  and  quality  as  those  sold  would  fetch  at  the  port  of  destination.  If  that 
port  of  destination  be  not  reached,  the  place  where  the  voyage  terminates  must  stand 
in  its  place.  For  such  goods  sold  on  the  way  full  freight  is  to  be  paid  to  the  shipowner. 
(Art.  G.59.)  If  the  ship  should  be  lost  in  the  further  course  of  the  voyage,  then  those 
interested  in  the  cargo  can  only  claim  the  return  of  the  proceeds  of  the  sale.  (Com- 
mentary of  G.  de  la  Sema  and  J.  Reus  y  Garcia,  p.  292,  Obs.  3,  and  p.  343,  Obs.  2.) 
But  what  claim  has  the  shipper  of  cargo  if,  when  the  ship  has  reached  her  des-tination, 
the  net  proceeds  of  the  sale  at  the  port  of  refuge  have  exceeded  that  of  the  port  of 
destination  ?  Can  he  then  demand  the  net' proceeds,  or  only  the  value  at  the  place  of 
destination  ?  This  question  is  not  decided  in  the  Spanish  Mercantile  Code.  According 
to  German  law  the  shippers  might  claim  the  highest  proceeds.  (Gn.  G.  A.  C, 
Art.  613,  clause  2.)"— (Ul.  p.  155.) 

(i)  "  Only  an  extraordinary  unexpected  quarantine  is  here  spoken  of,  not  such  a  one 
as  could  have  been  foreseen  at  the  signing  of  the  charter-party.  Costs  of  the  latter 
kind  fall  under  Art.  807,  and  must  be  met  out  of  freight."     (Ul.  p.  155.) 


666 


APPENDIX  T. 


§  810.  El  dueilo  de  la  cosa  que 
dio  lugar  al  gasto  6  recipio  el 
dano  soportara  las  averias  simples 
6  particulares . 

§  813.  Para  hacer  los  gastos  y 
causar  los  daiios  correspondientes 
a  la  averia  g-ruesa,  precedera  reso- 
lucion  del  capitan,  tomada  previa 
deliberacion  eon  el  piloto  y  demas 
oficiales  de  la  nave  y  audiencia  de 
los  interesados  en  la  carga  que  se 
hallaren  presentes. 

Si  estos  se  opusiereu,  y  el  capitan 
y  oficiales,  6  su  mayoria,  6  el 
capitan,  separaudose  de  la  ma} - 
oria,  estimaran  neeesarias  ciertas 
medidas,  podran  ejecutarse  bajo  su 
responsabilidad,  sin  perjuicio  del 
derecho  de  los  cargadores  a  ejer- 
eitar  el  suyo  contra  el  capitan  ante 
el  juez  6  tribvmal  competente  si 
pudieren  probar  que  procedio  con 
malieia,  imperieia  6  descuido. 


Si  los  interesados  en  la  carga, 
estando  en  el  buque,  no  fueron 
oidos,  no  contribuiran  a  la  averia 
gruesa,  imputable  en  esta  parte  al 
capital!,  a  no  ser  que  la  urgencia 
del  caso  fuere  tal  que  faltase  el 
tiempo  neeesario  para  la  previa 
deliberacion . 

§  814.  El  acuerdo  adoptado  para 
causar  los  danos  que  constituyen 
averia  comun  habra  de  extenderse 
necesariamente  en  el  libro  de  nave- 
gacion,  expresando  los  motives  y 
razones  en  que  se  apoyo,  los  votos 
en  contrario  y  el  f  undamento  de  la 


§  810.  The  owner  of  the  thing- 
that  has  caused  the  expense  or 
sustained  the  damage  must  bear 
particular  average. 

§  813.  Before  incurring  the  ex- 
penses, or  causing  the  damage  con- 
nected -with  the  general  average, 
the  captain's  decision  must  l)e 
made  after  consultation  with  the 
mate  and  other  officers  of  the  ship, 
in  the  presence  of  any  parties  in- 
terested in  the  cargo  who  may 
happen  to  be  on  board. 

If  these  should  not  agree  to  the 
measures,  and  the  captain  and 
ofiieers,  or  the  majority,  or  the 
captain,  apart  from  the  majority, 
should  deem  them  necessary,  they 
may  be  carried  out  on  his  respon- 
sibility, without  prejudice  to  the 
right  of  the  shippers  to  claim 
against  the  captain  before  the 
judge  or  proper  court,  if  they 
can  prove  that  he  has  acted  with 
malice,  unskilfulness,  or  care- 
lessness. 

If  parties  interested  in  the  cargo, 
being  on  board  at  the  time,  were 
not  consulted,  they  need  not  con- 
tribute to  the  general  average, 
which  thus  must  fall  on  the  captain, 
unless  the  urgency  of  the  ease  was 
such  that  there  was  no  time  for 
deliberation  beforehand. 

§  814.  Any  agreement  come  to 
about  causing  the  damages  which 
constitute  general  average  must  be 
detailed  in  the  log-book,  with  the 
reasons  and  motives  leading  to 
it,  the  dissentient  votes,  and  thfr 
ground.';  of  disagreement,  if  any^ 


1 


THE  LAW  OF  SPAIN. 


66r 


disidencia  si  existiere,  y  las  causas 
irresistibles  y  urg-entes  a  que  obe- 
dicio  el  capitau  si  obro  por  si. 

En  el  i^riaier  easo,  el  acta  se  fir- 
mara  por  todos  los  presentes  que 
supieren  hacerlo,  a  ser  posible,  an- 
tes de  proceder  a  la  ejecueiou;  y 
cuaudo  no  lo  sea,  en  la  primera 
oportunidad.  En  el  segundo,  por 
el  capitan  y  los  oficiales  delbuque. 

En  el  acta,  y  despues  del  acuerdo, 
se  expresaran  t iicunstanciamente 
todos  los  objetos  arrojados,  y  se 
hara  meneion  en  los  desperfectos 
que  se  eausen  a  los  que  se  conserven 
en  el  buque.  El  capitan  tendra 
obligacion  de  entregar  una  copia 
de  esta  acta  a  la  autoridad  judicial 
maritima  del  primo  puerto  donde 
arribe,  dentro  de  las  venticuatro 
lioras  de  su  llegada,  y  de  ratifi- 
carla  luego  con  juramento. 

§  81.5.  El  capitan  dirigira  la 
echazon  }•  niandara  arrojar  los 
efectos  por  el  orden  siguiente: 


1°.  Los  que  se  hallaren  sobre  eu- 
bicrta,  empezando  por  los  que  eni- 
baracen  la  maniobra  6  per  judiquen 
al  buc|ue,  prefiriendo  si  es  posible 
los  mas  pesados  y  de  nienos  utili- 
dad  y  valor. 

2°.  Los  que  estuvieren  bajo  la 
cubierta  superior,  eonienzando  si- 
empre  por  los  de  mas  peso  y  menos 
valor,  hasta  la  eantidad  y  numero 
que  fuese  absolutamente  indispen- 
sable . 

§  816.  Para  que  puedan  impu- 
tarse  en  la  averia  gruesa  y  tengan 


and  the  irresistible  and  urgent 
reasons  Avhicli  the  captain  yielded 
to,  in  case  he  acted  alone. 

In  the  former  case,  the  minute 
must  be  signed  by  all  present  who 
can  do  so,  and  this  if  possible  be- 
fore proceeding  to  execution;  but, 
if  not,  at  the  first  opportunity.  In 
the  second,  by  the  captain  and  the 
ship's  officers. 

In  this  minute,  after  the  agree- 
ment, mention  must  be  made  in 
detail  of  all  the  goods  thrown 
overboard,  and  any  harm  done  by 
them  to  those  left  on  board.  The 
captain  must  give  a  copy  of  this 
minute  to  the  judicial  maritime 
authority  of  the  first  port  that  the 
ship  touches  at,  within  four-and- 
twenty  hours  of  its  arrival,  and 
confirm  it  upon  oath. 


§  815.  The  captain  should  super- 
intend the  jettison  and  have  the 
goods  thrown  over  in  the  follow- 
ing order: 

1.  Those  on  deck,  beginning  with 
those  which  obstruct  the  handling 
of  the  vessel  or  injure  the  ship, 
preferring  if  possible  the  heaviest 
and  least  valuable  or  serviceable. 


2.  Tlioso  below  the  upper  deck, 
beginning  always  with  those  of 
most  weight  and  least  value,  up  to 
the  quantity  and  number  which 
moy  be  absolutely  required. 


§  81 G.  In  or<lor  that  effects  jet- 
tisoned    mav    be     admitted     into- 


668 


APPENDIX  T. 


derecho  a  indemnizacion  los  duenos 
de  los  efectos  arrojados  al  mar, 
sera  precise  que  en  cuanto  a  la 
carga  se  acredite  su  existencia  a 
bordo  con  el  conocimiento;  y  re- 
specto  a  los  pertenecientes  al  buque 
con  el  inventario  formado  antes  de 
la  salida,  couforme  al  parrafo  pri- 
DQero  del  art.  612. 

§  817.  Si  alijerando  el  buque  por 
causa  de  tempestad  para  facilitar 
su  entrada  en  el  puerto  6  rada,  se 
trasbordase  a  lanehas  6  barcas  al- 
guna  parte  del  cargamento  y  se 
perdiere,  el  dueno  de  esta  parte 
teudra  el  derecho  a  la  indemniza- 
cion como  originada  la  perdida  de 
averia  gruesa,  distribuyendose  su 
importe  entre  la  totalidad  del  bu- 
que y  el  cargamento  de  que  pro- 
ceda. 

Si  por  el  contrario,  las  mercade- 
rias  trasbordadas  se  salvaren  y  el 
buque  pereciere,  ninguna  respon- 
sabilidad  podra  exigirse  al  salva- 
mento . 

§  818.  Si  como  medida  necesaria 
para  cortar  un  incendio  en  puerto, 
rada,  ensenada  6  bahia,  se  acordase 
€char  a  pique  algun  buque,  esta 
perdida  sera  considerada  averia 
gruesa,  a  que  contribuiran  los 
buques  salvados. 


SECT.  II. 
De  las  Arribadas  forzosas. 

§  819.  Si  el  capitan,  durante  la 
iiavegacion,  creyere  que  el  buque 
no    puede    continuar    el    viaje    al 


general  average  and  their  owners 
given  a  claim  to  compensation,  the 
amount  of  cargo  supposed  to  be 
on  board  must  be  certified  by  bill 
of  lading,  and  as  to  the  ship's 
appurtenances,  by  the  inventory 
made  out  before  her  departure  ac- 
cording to  the  first  paragraph  of 
§  612. 

§  817.  If  in  lightening  the  ship 
on  account  of  bad  weather  to  faci- 
litate her  entry  into  a  port  or  road- 
stead, some  part  of  the  cargo  is  put 
on  boats  or  lighters  and  is  lost,  the 
owner  of  this  portion  has  a  right  to 
compensation  in  general  average; 
the  amount  to  be  divided  over  the 
whole  ship  and  the  cargo  it  came 
from. 


If,  on  the  other  hand,  the  goods 
transhipped  are  saved  and  the  ship 
itself  lost,  no  responsibility  falls 
on  the  goods  saved. 


§818.  If  as  a  necessary  measure 
to  cut  oft'  a  fire  which  has  broken 
out  in  a  port,  roadstead,  gulf,  or 
bay,  it  is  agreed  to  scuttle  a  vessel, 
this  loss  is  te  be  considered  as 
general  average  to  which  the  ves- 
sels saved  must  contribute. 


SECT.  II. 

Of  putting  into  a  Port  of 

Refuge. 

§  819.  If  in  the  course  of  the 
voyage  the  captain  finds  he  cannot 
continue  it  to  the  port  of  destina- 


THE  LAW  OF  SPAIN. 


669' 


puerto  de  su  destino  por  falta  de 
viveres,  temor  fundado  de  em- 
bargo, corsarios  6  piratas,  6  por 
cualquier  accidente  de  mar  que  lo 
inhabilite  para  navegar,  reunira  a 
los  oficiales,  citara  a  los  interesados 
en  la  carga  que  se  hallaren  pre- 
sentes  y  que  pueden  asistir  a  junta 
sin  derecho  a  votar;  y  si  exami- 
nadas  las  circunstaucias  del  caso 
se  considerase  fundado  el  motivo, 
se  acordara  la  arribada  al  puerto 
mas  proximo  y  eonveuiente,  levan- 
tando  y  extendiendo  en  el  libro  de 
navegacion  la  oportuna  acta,  que 
firmaran  todos. 

El  capitan  tendra  voto  de  cali- 
dad,  y  los  interesados  en  la  carga 
podran  hacer  las  reclamaciones  y 
protestas  que  estimen  oportunas, 
las  cuales  se  insertaran  en  el  acta 
para  que  las  utilicen  como  vieren 
eonvenirles. 

§  820.  La  arribada  no  se  repu- 
tara  legitima  en  los  cases  siguien- 
tes: — 

1°.  Si  la  falta  de  viveres  proce- 
diere  de  no  haberse  hecho  el  avitu- 
allamiento  necesario  para  el  viaje 
segun  uso  y  costumbre,  6  si  se 
hubieren  inutilizado  6  perdido  por 
mala  colocacion  6  descuido  en  su 
custodia. 

2°.  Si  el  riesgo  de  enemigos, 
corsarios  6  piratas  no  hubiere  sido 
bien  conocido,  manifiesto  y  fundado 
en  hechos  positives  y  justificables. 


3°.  Si  el  desperfecto  del  buque 
proviniere  de  no  haberlo  rcparado, 


tion  for  want  of  victuals,  or  well- 
grounded  apprehension  of  embar- 
go, corsairs,  or  pirates,  or  from 
any  accident  of  the  sea  which 
unfits  the  ship  for  sailing  on,  he 
must  call  together  his  officers  and 
summon  any  parties  interested  in 
the  cargo  who  may  be  on  board, 
who  may  assist  at  the  meeting  but 
not  vote;  and  if  on  examination 
of  the  circumstances  the  reason 
should  be  found  valid,  the  putting 
into  the  nearest  and  most  conve- 
nient port  shall  be  agreed  upon 
and  a  minute  of  the  same,  signed 
by  all,  must  be  entered  in  the  log- 
book. 

The  captain  gives  the  casting- 
vote,  and  parties  interested  in  the 
cargo  may  enter  their  protests  and 
demands  as  they  see  fit,  to  be  in- 
serted in  the  minute,  to  be  made 
use  of  as  may  be  convenient. 

§  820.  Putting  in  is  not  con- 
sidered legitimate  in  the  following 
cases : — 

1.  If  the  want  of  victuals  pro- 
ceeds from  there  not  having  been  a 
proper  sup2)l3'  for  the  voyage,  ac- 
cording to  use  and  custom,  or  if 
it  has  been  wasted  or  lost  by  bad 
packing  or  carelessness  in  keeping. 

2.  If  the  risk  of  enemies,  cor- 
sdirs,  or  pirates  has  not  been  a 
well-ascertained  one,  manifest  and 
founded  on  positive  and  justifica- 
tory acts. 

3.  If  the  deficiencies  of  the  ship 
proceed  from  her  not  being  pro- 


670 


APPENDIX  T. 


pertrechado,  equipado  y  dispuesto  perly  repaired,  provisioued,  fitted 
convenientemente  para  el  viaje,  6  out,  or  arranged  suitably  for  the 
de  algiina  disposicion  desacertada  |  voyag-e,  or  from  any  error  on  the 
del  capitan.  captain's  part. 


4°.   Siempre  que  liubiere  en  el         4.   If    in    the    act    causing    the 
hecho  causa  de  la  averia,  malicia,     averag-e  there  was  any  malice,  neg- 
ligence,   thoughtlessness,    or    un- 
skilfuluess  on  the  captain's  part. 

§  821.  The  expenses  of  the  put- 
ting into  a  port  of  refuge  are 
always  to  the  shipowner's  or  les- 
sor's account;  but  he  is  not  respon- 
sible for  any  detriment  which  may 
happen  to  the  shippers  in  conse- 
quence of  the  putting  in,  provided 
that  this  was   legitimate  ^fci. 

If  otherwise,  the  shipowner  and 
the  captain  are  jointly  responsible. 


negligeneia,  impre vision,  6  imperi- 
cia  del  capitan. 

§  821.  Los  gastos  de  la  arribada 
forzosa  seran  siempre  de  cuenta 
del  naviero  6  fletante;  pero  estos 
no  seran  responsables  de  los  per- 
juicios  que  puedan  seguirse  a  los 
cargadores  por  consecuencia  de  la 
arribada,  siempre  que  esta  hubiere 
sido  legitima. 

En  case  contrario  seran  respon- 
sables mancomunadamente  el  na- 
viero y  el  capitan. 

§  822.  Si  para  hacer  reparaciones 
en  el  buque,  6  porque  hubiere  pe- 
ligro  de  que  la  carga  sufriera 
averia,  fuese  neeesario  proceder  a 
la  descarga,  el  capitan  debera  pedir 
al  juez  6  tribunal  competente  auto- 
rizacion  para  el  alijo  y  llevarlo  a 
cabo  con  conocimiento  del  inter- 
esado  6  represeutante  de  la  carga 
si  lo  hubiere. 

En  puerto  extranjero  correspon- 
dera  dar  la  autoridad  al  consul 
espanol  donde  le  haya. 

En  el  primer  case  seran  los 
gastos  de  cuenta  del  naviero,  y  en 


§  822.  If  in  order  to  repair  the 
ship,  or  because  there  was  reason 
to  fear  that  the  cargo  might  have 
sustained  damage,  it  is  thought 
necessary  to  discharge  it,  the  cap- 
tain must  obtain  a  permit  from  the 
proper  court  for  that  purpose,  and 
conduct  it  with  the  cognizance  of 
any  agent  or  party  interested  in 
the  cargo  that  ma}-  be  on  tlie  spot. 

In  a  foreign  port  the  Spanish 
consul  must  authorize  the  proceed- 
ing. 

In  the  former  case  the  expenses 
are  at  the  shipowner's  charge,  and 


{k)  The  costs  of  putting  into  a  port  of  refuge  are  m  practice  treated  as  general 
average  if  the  damage  which  necessitated  the  bearing  up  were  itself  general  average. 
It  is  to  be  regretted  that  the  Code  has  not  legalized  this  practice,  and  drawn  the  law 
in  conformity  with  Rules  VII.  and  VIII.,  York-Antwerp  (1877). 


THE  LAW  OF  SPAIN. 


671 


•el  segundo  correrau  a  cargo  de  los 
dueiios  de  las  mercaderias  en  cuyo 
beneficio  se  hizo  la  operacion. 

Si  la  descarga  se  verificara  por 
ambas  causas,  los  gastos  se  distri- 
buiran  proporcioualmeute  entre  el 
valor  del  buque  y  el  del  carga- 
mento. 

§  823.  La  eustodia  y  conserva- 
cion  del  cargameuto  deseiubarcado 
estara  a  cargo  del  capitan,  que 
respondera  de  el  a  no  mediar 
fuerza  mayor. 

§  824.  Si  apareciere  averiado 
todo  el  carganiento  6  parte  de  ol, 
6  hubiere  peligro  inminente  de  que 
averiase,  podra  el  capitan  pedir  al 
juez  6  tribunal  eompetente  6  al  con- 
sul, en  su  caso,  la  venta  del  todo  6 
])arte  de  aquel,  y  el  que  de  esto 
deba  conocer  autorizarla,  previo 
reconocimiento  y  declaracion  de 
peritos,  anuncios  y  demas  forma- 
lidades  del  caso,  v  anotacion  en  el 
libro,  conforme  se  previene  en  el 
art.  624. 

El  capitan  justificara  en  su  caso 
la  legalidad  de  su  proceder,  so 
pena  de  responder  al  cargador  del 
precio  que  habrian  alcanzado  las 
mercaderias  llegando  en  buen 
ostado  al  puerto  de  su  destino. 


§  825.  El  capitan  respondera  de 
los  perjuicios  que  cause  su  dila- 
cion,  si  cesando  el  motive  que  dio 
lugar  a  la  arribada  forzosa  no  con- 
tinuase  el  viaje. 

Si  el  motive  de  la  arribada  hu- 
biere side  el  temor  de  enemigos, 


in  the  second  at  that  of  the  owners 
of  the  goods  for  whose  benefit  the 
measure  is  taken. 

If  the  discharge  is  certified  to  be 
for  both  reasou.s,  the  expenses  are 
to  be  divided  in  proportion  be- 
tween the  value  of  ship  and  cargo. 


§  823.  The  custody  and  care  of 
the  discharged  cargo  falls  on  the 
captain,  who  is  responsible  for  it, 
excepting  for  cases  of  force  ma- 
jeure. 

§  824.  If  the  whole  or  part  of 
the  cargo  appears  to  be  damaged, 
or  there  is  imminent  risk  of  its 
being  spoiled,  the  captain  may  re- 
quest a  permit  of  sale  of  the  whole 
or  part,  from  the  judge  or  the 
proper  court  or  the  consul,  who 
upon  this  will  authorize  it,  after 
a  survey  and  declaration  of  ex- 
perts, advertisements,  and  other 
due  formalities,  and  having  it 
registered  as  provided  in  §  624. 

The  captain  must  justify  the 
legality  of  his  proceeding  under 
pain  of  being  responsible  to  the 
shipper  for  the  difference  of  price 
which  the  goods  would  have 
fetched  had  they  reached  the  port 
of  destination  in  safety. 

§  825.  The  captain  will  be  held 
responsible  for  any  harm  caused  by 
his  delay,  if  he  does  not  continue 
the  voyage  as  soon  as  the  reason 
for  his  putting  in  ceases  to  exist. 

If  such  reason  was  the  fear  of 
enemies,    corsairs,   or    pirates,    he 


672 


APPENDIX  T. 


corsarios  6  piratas,  precederan  a  la 
salida  deliberacioii  y  acuerdo  en 
junta  de  oficiales  del  buque  e  in- 
teresados  en  la  carga  que  se  hal- 
laren  preseutes,  en  conformidad 
con  lo  dispuesto  en  el  art.  819. 


TIT.  y.     SECT.  I. 

De  l.v  Justificacion  y  Liquidacion 
de  las  averias. 

§  846.  Los  interesados  en  la  jus- 
tificacion y  liquidacion  de  las  ave- 
rias  podran  convenirse  y  obligarse 
mutuamente  en  cualquier  tiempo 
acerca  de  la  responsabilidad,  liqui- 
dacion y  pag'O  de  ellas. 

A  falta  de  convenios,  se  observa- 
ran  las  regias  siguientes: — • 

1*.  La  justificacion  de  la  averia 
se  verificara  en  el  puerto  donde  se 
hagan  las  reparaciones,  si  fueren 
necesarias,  6  en  el  de  descarga. 

2^.  La  liquidacion  se  hara  en  el 
puerto  de  descarga  si  fuere 
espanol. 

3^.  Si  la  averia  hubiere  ocurrido 
fuera  de  las  aguas  jurisdiccionales 
de  Espana,  6  se  hubiere  vendido  la 
carga  en  puerto  extranjero  por  ar- 
ribada  forzosa,  se  hara  la  liquida- 
cion en  el  puerto  de  arribada. 

i.^.  Si  la  averia  hubiese  ocurrido 
cerca  del  puerto  del  destine,  de 
modo  que  se  pueda  arribar  a  dieho 
puerto,  en  el  se  practicaran  las 
operaciones  de  que  tratan  los  nu- 
meros  1°  y  2°. 


must,  before  leaving  the  port,  call 
a  council  of  his  officers  and  of 
those  interested  in  the  cargo  who 
may  be  ou  the  spot,  agreeably  to 
§819. 


TIT.    V.     SECT.  I. 

Of  the  Proof  and  Liquidation 
OF  Averages. 

§  846.  The  parties  interested  in 
the  proof  and  liquidation  of  the 
average  may  meet  and  bind  them- 
selves mutually  to  a  certain  time, 
as  to  the  responsibility,  liquida- 
tion, and  payment  thereof. 

Failing  such  agreements,  the 
following  rules  hold  good:  — 

1.  The  proof  of  the  average  is 
to  be  certified  at  the  port  where 
repairs  are  made  if  they  were 
necessary 


or  at  that  of  discharge. 


2 .  The  liquidation  to  be  made  at 
the  port  of  discharge  if  a  Spanish 
one. 

3.  If  the  average  has  occurred 
outside  the  jurisdiction  of  Spain, 
or  the  cargo  been  sold  at  a  port 
of  refuge  in  some  foreign  country, 
the  liquidation  to  be  made  at  that 
port  of  refuge. 

4.  If  the  average  occurred  near 
the  port  of  destination,  so  that  the 
ship  could  put  into  that  port,  then 
the  measures  spoken  of  in  Nos.  1 
and  2  come  into  force. 


THE  LAW  OF  SPAIN. 


673 


§  847.  Tanto  en  el  caso  de  ha- 
cerse  la  liquidaeion  de  las  averias 
privadamente  en  virtud  de  lo  con- 
venido,  como  en  el  de  intervenir  la 
autoridad  judicial  a  peticion  de 
cualquiera  de  los  intoresados  no 
eonformes,  todos  seran  citados  y 
oidos  si  no  hubieren  renunciado  a 
ello. 

Cuando  no  se  liallaren  presentes 
6  no  tuvieren  legitimo  represen- 
tante,  se  hard  la  liquidaeion  por  el 
consul  en  puerto  extranjero,  y 
donde  no  lo  hubiere,  por  el  juez  6 
tribunal  competente,  segun  las 
leyes  del  pais,  y  por  cuenta  de 
quien  corresponda. 

Cuando  el  representante  sea  per- 
sona conoeida  en  el  lugar  donde  se 
liaga  la  liquidaeion,  se  admitira  y 
producira  efecto  legal  su  interven- 
cion,  aunque  solo  este  autorizado 
por  carta  del  naviero,  del  cargador 
6  del  asegurador. 


§  848.  Las  demandas  sobre 
averias  no  seran  admisibles  si  no 
excedieren  del  5  por  100  del  in- 
teres  que  el  demandante  tenga  en 
el  buque  6  en  el  cargamento  siendo 
gruesas,  y  del  1  por  100  del  efecto 
averiado  si  fueren  simples,  deduci- 
endose  en  ambos  casos  los  gastos 
de  tasacion,  salvo  pacto  en  con- 
trario . 

§  849.  Los  danos,  averias,  pre- 
stamos  a  la  gruesa  y  sus  premios, 
y  cualesquiera  otras  perdidas,  no 
devongaran  interes  de  demora  sino 
j)asado  cl  plazo  de  tres  dias,  a 
contar  desde  el  en  que   la  liqui- 


§  847.  Both  in  the  case  oi  the 
affair  being  privately  adjusted  by 
agreement,  and  of  the  judicial 
authority  intervening  at  the  re- 
quest of  some  dissentient  party 
interested,  every  one  must  be  sum- 
moned and  heard  unless  they  have 
renounced. 

If  there  are  no  parties  present^ 
and  no  lawful  agent,  the  liquida- 
tion must  be  drawn  up  by  the 
consul  in  a  foreign  port,  or  else  by 
the  judge  of  the  proper  tribunal, 
according  to  the  laws  of  the 
country,  and  on  account  of  whom 
it  may  concern. 

If  the  agent  be  a  person  A\ell 
knoM-n  at  the  place  where  the 
liquidation  is  made,  he  is  to  be 
received,  and  his  intervention  ad- 
mitted as  lawful,  although  he  be 
only  authorized  by  letter  from  the 
shipowner,  shipper,  or  under- 
writer. 

§  848.  No  demand  for  average  is 
admissible,  unless  it  exceeds  5  por 
cent,  of  the  interest  which  the 
party  claiming  has  in  the  ship  or 
cargo  as  to  general  average,  or  1 
per  cent,  of  the  property  damaged 
as  to  particular  average,  unless 
otherwise  agreed. 


§  849.  Damages,  losses,  bot- 
tomry loans  and  premiums,  and 
any  other  losses,  do  not  begin  to 
have  interest  for  delay,  till  three 
days  have  passed  after  the  liqui- 
dation is  finished   and    communi- 

X  X 


674 


APPENDIX  T. 


dacion  hay  a  sido  termiuado  y 
comunicada  a  los  interesados  en  el 
buque,  en  la  carg-a,  6  en  ambas 
cosas  a  la  vez. 


§  850.  Si  por  consecuencia  de 
uuo  6  varios  aecidentes  de  mar 
ocurrieren  en  un  mismo  viaje 
averias  simples  y  gruesas  del 
buque,  del  cargamento  6  de  ambos, 
se  determinaran  con  separacion  los 
gastos  y  danos  pertenecieutes  a 
cada  averia  en  el  puerto  donde  se 
hagan  las  reparaciones,  6  se  des- 
carg-uen,  vendan  6  beneficien  las 
mercaderias . 

Al  efecto  los  capitanes  estaran 
obligados  a  cxigir  de  los  peritos 
tasadores  y  de  los  maestros  que 
ejecuten  las  reparaciones,  asi  como 
de  los  que  tasen  6  intervengan  en 
la  descarga,  saneamiento,  venta  6 
beneficio  de  las  mercaderias,  que 
en  sus  tasaeiones  6  presupuestos  y 
cuentas  pongan  con  toda  exactitud 
y  separacion  los  dafios  y  gastos 
pertenecieutes  a  cada  averia,  y  en 
los  de  cada  averia  los  correspon- 
dientes  al  buque  y  al  cargamento, 
expresando  tambien  con  separacion 
si  hay  6  no  danos  que  procedan  de 
vicio  propio  de  la  cosa  y  no  de  ac- 
cidente  de  mar;  j  en  el  case  de  que 
hubiere  gastos  comunes  a  las  dife- 
rentes  averias  y  al  buque  y  su 
carga,  se  debera  calcular  lo  que 
corresponda  por  cada  concepto  y 
exprenarlo  distintamente. 


cated  to  the  parties  interested  in 
ship,  or  cargo,  or  both  together. 


§  850.  If,  in  consequence  of  one 
or  more  disasters  at  sea,  there 
have  occurred  in  the  same  voyage 
both  general  and  particular  aver- 
ages to  ship  or  cargo,  or  both,  the 
expenses  and  damages  belonging 
to  each  must  be  settled  at  the  port 
where  the  repairs  are  effected,  or 
the  goods  discharged,  sold,  or  re- 
conditioned. 

The   captains   must  exact  from 
the  experts  who  survey  and  from 
the  master  shipwrights  who  repair, 
and   from  those  who   superintend 
and  appraise  at  the  discharge,  re- 
pair, sale,  or  reconditioning  of  the 
goods,  that  in  all  their  estimates 
and  reports  and  accounts  they  shall 
separate  carefully  the  damage  and 
expenses  belonging  to  each  aver- 
age, and  in  each  what  belongs  to 
ship  and  what  to  cargo,  and  also 
distinguish  the  damage  which  has 
been  the  result  of  vice  propre,  and 
not  of  an  accident  of  the  sea;  and 
should  there  be  expenses  common 
to  the  different   averages  and    to 
ship  and  cargo,  they  must  calcu- 
late what    belongs    to    each    and 
detail  it  exactly. 


THE  LAW  OF  SPAIN. 


675 


SECT.  II. 

De  la  Liquidacion  de  las  Averias 
Gruesas. 

§  851.  A  instancia  del  capitau  se 
procedera  privadamente,  jnediante 
el  aeuerdo  de  todos  los  interesados, 
al  arreg-lo,  liquidacion  y  distribu- 
cion  de  las  averias  gruesas. 

A  este  efecto,  dentro  de  las  cua- 
renta  y  ocho  lioras  siguientes  a  la 
llegada  del  buque  al  puerto  el. 
capitan  convocara  a  todos  los 
interesados  para  que  resuelvan  si 
el  arreglo  6  liquidacion  de  las  ave- 
rias gruesas  habra  de  hacerse  por 
peritos  y  liquidadores  nombrados 
por  ellos  mismos,  en  cuyo  caso  se 
hara  asi,  habiendo  conformidad 
entre  los  interesados. 

No  siendo  la  avenencia  posible, 
el  capitan  acudira  al  tribunal  com- 
petente,  que  lo  sera  el  del  puerto 
donde  hayan  de  practicarse  aquel- 
las  diligeneias  conforme  a  las  dis- 
posiciones  de  este  Codigo,  6  al  con- 
sul de  Espafia,  si  lo  liubiese,  y  si  no 
a  la  autoridad  local  cuando  hayan 
de  verificarse  en  puerto  extranjero. 

§  852.  Si  el  capitau  no  cumpliere 
con  lo  dispuesto  en  el  articulo  an- 
terior, el  naviero  6  los  cargadores 
reclamaran  la  liquidacion,  sin  per- 
juicio  de  la  accion  que  les  corres- 
ponda  para  pedirle  indemnizacion. 

§  853.  Nombradoj  los  peritos  por 
los  interesados  6  por  el  tribunal, 
procederan,  previa   la  acoptacion. 


SECT.  II. 

Of  the  Liquidation"  of  General 
Average. 

§  851.  At  the  instance  of  the 
captain  the  adjustment,  liquida- 
tion, and  distribution  of  the  gene- 
ral average  will  be  drawn  up 
privately  with  the  consent  of  all 
parties  interested. 

For  this  end,  within  four-and- 
twenty  hours  of  the  arrival  of  the 
ship  into  port,  the  captain  must 
request  all  parties  interested  to  de- 
termine whether  they  will  agree  to 
have  the  liquidation  drawn  up  by 
experts  and  adjusters  nominated 
amongst  themselves,  in  which  case 
so  it  shall  be  done  if  the  parties 
interested  are  agreed. 

If  no  agreement  is  possible,  the 
captain  must  have  recourse  to  the 
proper  court  for  such  affairs  ac- 
cording to  the  provisions  of  this 
Code,  or  to  the  consul,  if  there  be 
one,  or  if  not  to  the  local  authority 
if  it  be  in  a  foreign  port. 


§  852.  If  tlie  captain  does  not 
comply  with  the  regulations  of  the 
previous  article,  the  shipowner  or 
the  shippers  can  demand  the  liqui- 
dation without  prejudice  to  their 
right  to  claim  indemnification. 

§  853.  The  experts  Avho  are 
nominated  by  the  parties  con- 
cerned, or  by  the  court,  shall  pro- 


al  reconocimiento  del   buque  y  de  I  ceed,  after  accepting  the  charge,  to 

X  X  2 


676 


APPENDIX  T. 


las  reparaeiones  que  necesite  y  a  la 
tasacioii  de  su  importe,  distingui- 
eudo  cstas  perdidas  y  dauos  de  los 
que  provengan  de  vicio  propio  de 
las  cosas. 

Tambien  declararan  los  peritos 
si  puedeu  ejecutarse  las  repara- 
cioues  desde  luego,  6  si  es  necesario 
deseargar  el  buque  para  recono- 
cerlo  y  repararlo. 

Respecto  a  las  mercaderias,  si  la 
averia  fuere  perceptible  a  la  simple 
vista,  debera  verificarse  su  recono- 
cimiento  antes  de  entregarlas.  No 
apareciendo  a  la  vista  al  tiempode 
la  descarga,  podra  hacerse  despues 
de  su  entrega,  siempre  que  se  veri- 
fique  deutro  de  las  cviarenta  y  ocho 
boras  de  la  descarga  y  sin  perjuicio 
de  las  demas  pruebas  que  estimen 
conveniente  los  peritos. 

§  854.  La  evaluacion  de  los  ob- 
jetos  que  hay  an  de  contribuir  a  la 
averia  gruesa,  y  la  de  los  que  con- 
stituyen  la  averia,  se  sujetara  a  las 
reglas  siguientes: 

1-1.  Las  mercaderias  salvadas 
que  liayan  de  contribuir  al  pago 
de  la  averia  gruesa  se  valuaran  al 
precio  corriente  en  el  puerto  de 
descarga,  deducidos  fletes,  dere- 
chos  de  aduanas  y  gastos  de  des- 
embarque,  segun  lo  que  aparezca 
de  la  inspeccion  material  de  las 
mismas,  prescindiendo  de  lo  que 
rcsulte  de  los  conocimientos,  salvo 
pacto  en  contrario. 

2a.  Si  hubiere  de  hacerse  la  li- 


survey  the  vessel  and  the  repairs 
required,  and  to  estimate  the 
amount,  distinguishing  those 
losses  and  damages  which  proceed 
from  the  inherent  defect  (vice 
propre)  of  the  things. 

The  experts  shall  also  state  if 
the  repairs  can  be  effected  as  she 
is,  or  if  it  will  be  needful  to  dis- 
charge the  ship  in  order  to  survey 
and  repair  her. 

With  respect  to  the  merchan- 
dise, if  the  damage  is  evident,  it 
should  be  surveyed  before  deliver- 
ing it.  If  there  is  nothing  to  be 
seen  at  the  time  of  discharge,  it 
may  be  surveyed  afterwards,  but 
this  must  be  certified  within  forty- 
eight  hours  after  the  discharge, 
and  without  prejudice  to  other 
proofs  which  the  experts  may 
think  fit. 

§  854.  The  valuation  of  things 
which  have  to  contribute  in  gene- 
ral average,  and  of  those  which 
constitute  the  average,  is  subject 
to  the  following  rules: 

1.  The  goods  saved,  which  have 
to  contribute  to  pay  the  general 
average,  are  to  be  valued  at  the 
price  current  at  the  port  of  dis- 
charge, deducting  freight,  also 
customs  duties  and  unloading 
charges,  according  to  their  appear- 
ance under  inspection,  without  re- 
ference to  the  bills  of  lading, 
unless  there  was  an  agreement  to 
the  contrary. 

2.  If    the    liquidation  is  to  be 


quidacion  en  el  puerto  de  salida,  el  I  made  at  the  port  of  sailing,  the 


THE  LAW  OF  SPAIN. 


677 


valor  de  las  mercaden'as  cargadas 
se  fijara  por  el  precio  de  compra 
con  los  g-astos  hasta  ponerlas  a 
bordo,  excluido  el  premio  del  se- 
guro. 

3a.  Si  las  mercaderias  estiiviereu 
averiadas,  se  apreeiaran  por  su 
valor  real. 


■i^.  Si  el  viaje  se  hubiere  inter- 
rumpido,  las  mercaderias  se  hu- 
bieren  vendido  en  el  extranjero  y 
la  averia  no  pudiere  regularse,  se 
tomara  por  capital  contribuyente 
el  valor  de  las  mercaderias  en  el 
puerto  de  arribada  6  el  producto 
liquido  obtenido  en  su  venta. 

0^.  Las  mercaderias  perdidas 
que  constituyeren  la  averia  gruesa 
se  apreeiaran  por  el  valor  que  ten- 
gan  las  de  su  clase  en  el  puerto  de 
descarga,  con  tal  que  c<3nsten  en 
los  conocimientos  sus  especies  y 
calidades ;  y  no  constando,  se  estara 
a  lo  que  resulte  de  las  facturas  de 
compra  expedidas  en  el  puerto  de 
embarque,  aumentando  a  su  im- 
porte  los  gastos  y  fletes  causados 
posteriormente. 

6a.  Los  palos  cortados,  las  volas, 
cables  y  demas  aparejos  del  buque 
inutilizados  con  el  objeto  de  sal- 
varlo,  se  apreeiaran  segun  el  valor 
corrientc,  descontando  una  tercera 
parte  por  diferencia  de  nuevo  a 
vie jo. 

Esta  robaja  no  so   hard   en    las  I 
anclas  v  cadenaa. 


value  of  the  goods  loaded  is  to  be 
fixed  at  the  price  of  purchase  Avith 
the  cost  of  putting  them  on  board, 
exclusive  of  the  premium  of  insur- 
ance. 


3.  If  the  goods  are  damaged 
they  are  to  be  taken  at  their  actual 
value . 


4.  If  the  voyage  is  interrupted, 
the  goods  sold  at  a  foreign  port, 
and  the  average  cannot  be  ad- 
justed, the  value  of  the  goods  at 
the  port  of  refuge  or  the  net  pro- 
ceeds of  their  sale  must  be  taken 
as  the  contributory  capital. 


o.  The  goods  lost  which  consti- 
tute the  general  average  are  to  be 
valued  at  the  price  such  goods 
would  have  at  the  port  of  dis- 
charge, having  reference  to  the 
species  and  quality  shown  b}'  the 
bills  of  lading;  and  if  this  cannot 
be  done,  they  must  be  taken  al 
their  invoice  cost  with  shipment  at 
the  port  of  loading,  adding  the 
charges  and  freight  subsequently 
incurred. 


6.  Masts  cut  away,  sails,  cables, 
and  other  apparel  destroyed  to 
save  the  ship  shall  be  valued  at 
the  price  current,  deducting  one- 
third  for  difference  between  new 
and  old. 

This  deduction  is  not  made  on 
anchors  and  chains. 


678 


APPENDIX  T. 


7''^.  El  buque  se  tasara  por  su 
valor  real  en  el  estado  en  que  se 
eneuentre. 

8^.  Los  fletes  represontaran  el 
50  por  100  como  capital  contribu- 
yente . 

§  855.  Las  mercaderias  cargadas 
en  el  combes  del  buque  contribu- 
iran  a  la  averia  gruesa  si  se  sal- 
varen;  pero  no  daran  dereeho  a 
indemnizacion  si  se  perdieren, 
liable udo  side  arrojadas  al  mar  por 
salvamento  coniun,  salvo  cuando 
en  la  navegacion  de  cabotaje  per- 
mitieren  las  ordenanzas  maritimas 
su  carga  en  esa  forma. 

Lo  mismo  sucedera  con  las  que 
existan  a  bordo  y  no  consteu  com- 
prendidas  en  los  conocimientos  6 
inventarios,  segun  los  cases. 

En  todo  caso  el  fletante  y  el 
capitan  responderan  a  los  carga- 
dores  de  los  perjuicios  de  la 
ecbazon,  si  la  colocacion  en  el 
combes  se  hubiere  hecho  sin  con- 
sentimiento  de  estos. 

§  85G.  Xo  contribuirau  a  la  ave- 
ria gruesa  las  municiones  de  boca 
y  guerra  que  Ueve  el  buque,  ni  las 
ropas  ni  vestidos  de  uso  de  su 
cai)itan,  oficiales  y  tripulacion. 

Tambien  quedaran  exceptuados 
las  ropas  y  vestidos  de  uso  de  los 
cargadores,  sobrecargos  y  pasa- 
jeros  que  al  tiempo  de  la  echazon 
se  encuentren  a  bordo. 

Los  efectos  arrojados  tampoco 
contribuiran  al  pago  de  las  averias 


7.  The  ship  shall  be  valued  at 
her  actual  value  in  the  state  iu 
which  she  is  found. 

8.  The  freights  shall  be  taken 
at  50  per  cent,  as  contributory 
capital. 

§  855.  Goods  laden  on  deck  shall 
contribute  to  the  general  average 
if  saved;  but  they  have  no  right 
to  compensation  if  lost  through 
being  jettisoned  for  the  common 
safety,  except  when  in  the  coasting 
trade  the  maritime  laws  allow 
cargo  to  be  thus  carried. 


The  same  is  the  case  with 
articles  carried  on  board  but  not 
mentioned  in  the  bills  of  lading 
or  inventory,  according  to  circum- 
stances . 

In  all  cases  the  shipowner  and 
the  captain  will  be  responsible  to 
the  shippers  for  damages  caused 
by  the  jettison,  if  the  goods  were 
stowed  on  deck  without  their  con- 
sent. 

§  856.  Victuals  and  ammunition 
carried  on  board  do  not  contribute 
in  general  average,  nor  articles  of 
personal  use  or  clothes  worn  by  the 
captain,  officers,  or  crew. 

Also  arc  excepted  such  articles 
and  clothes  worn  by  shippers, 
supercargoes,  and  passengers  on 
board  at  the  time  of  the  jettison. 

Nor  do  things  jettisoned  contri- 
bute to  general  average  occurring 


THE  LAW  OF  SPAIN. 


679 


gTuesas  que  ocurran  a  las  merca- 
derias  salvadas  en  riesgo  diferente 
y  posterior. 

§  857.  Terliiinada  por  los  peritos 
la  valuacion  de  los  efeetos  salvados 
J  de  los  perdidos  que  constituyan 
la  averia  gruesa,  hechas  las  repa- 
raciones  del  buque,  si  hubiere 
lugar  a  ello,  y  aprobadas  en  este 
caso  las  cuentas  de  las  mismas 
por  los  interesados  6  por  el  juez  6 
tribunal,  pasara  el  expediente  in- 
tegro  al  liquidador  nombrado  para 
que  proceda  a  la  distribucion  de 
la  averia. 

§  858.  Para  verifiear  la  liquida- 
cion  examinara  el  liquidador  la 
protesta  del  capitan,  comproban- 
dola,  si  fuere  necesario,  con  el 
libro  de  navegacion,  y  todos  los 
contratos  que  hubieren  mediado 
entre  los  interesados  en  la  averia, 
las  tasaciones,  reconocimientos 
periciales  y  cuentas  de  reparaciones 
hechas.  Si  por  resultado  de  este 
examen  hallare  en  el  procedi- 
miento  algun  defecto  que  pueda 
lastimar  los  derechos  de  los  inter- 
esados 6  afeetar  la  responsabilidad 
del  capitan,  llamara  sobre  ello  la 
atencion  para  que  se  subsane, 
siendo  posible,  y  en  otro  caso  lo 
consignara  en  los  preliminarcs  de 
la  liquidacion. 

Enseguida  procedera  a  la  distri- 
bucion del  importc  de  la  averia, 
})ara  lo  cual  fijara: 

1°.  El  capital  contribuycnte,  quo 
determinara   por   el    importc   del 


to  the  goods  saved  in  a  different 
and  later  peril. 


§  857.  When  the  experts  have 
concluded  their  survey  of  the 
goods  saved  and  losses  which  make 
up  the  general  average,  and  the 
ship  is  repaired,  if  need  be,  and 
in  this  case  if  the  accounts  of  the 
same  have  been  approved  by  the 
parties  interested  or  b}-  the  judge 
or  court,  all  the  documents  must  be 
handed  over  to  the  appointed  ad- 
juster that  he  ma}-  proceed  to  dis- 
tribute the  average. 

§  858.  In  order  to  certify  the 
adjustment  the  adjuster  must 
examine  the  captain's  protest,  com- 
paring it  if  need  be  with  the  log- 
book, and  all  the  agreements  made 
betAveen  any  parties  interested,  the 
valuations,  surveys,  and  accounts 
of  the  repairs.  If  he  finds  any 
defect  which  may  concern  the 
parties  interested  or  affect  the 
captain's  responsibility,  he  will 
call  attention  to  have  it  explained 
if  possible,  or  otherwise  Avill  note 
it  down  in  the  preamble  to  the 
adjustment. 


He  will  then  proceed  to  appor- 
tion the  amount  of  the  average, 
determining  as  follows: 

1.  The  contributory  capital, 
which  he  will  iix  bv  the  value  of 


680 


APPENDIX  T. 


valor  del  carg-amento,  eouforme  a 
las  reglas  establecidas  en  el  §  854. 

2°.  El  del  buqne  en  el  estado 
que  tenga,  segun  la  declaracion  de 
peritos. 

3°.  El  50  por  100  del  importe 
del  flete,  rebajando  el  50  por  100 
restante  por  salarios  y  alimentos 
de  la  tripulacion. 

Determiiiada  la  suma  de  la 
averia  gruesa  conforme  a  lo  dis- 
puesto  en  este  Codigo,  so  distri- 
buira  a  prorrata  entre  los  valores 
llamados  a  costearla. 

§  859.  Los  aseguradores  del 
buquo,  del  flete  y  de  la  carga 
estarau  obligados  a  pagar  por  la 
indemnizacion  de  la  averia  gruesa 
tanto  cuanto  se  exija  a  cada  uno 
de  estos  objetos  respeetivamente. 

§  860.  Si  no  obstante  la  echazon 
de  mercaderias,  rompimiento  de 
palos,  cuerdas  y  aparejos,  se  ^Der- 
diere  el  buque  eorriendo  el  mismo 
riesgo,  no  habra  lugar  a  contribu- 
cion  alguna  por  averia  gruesa. 

Los  duenos  de  los  efeetos  salva- 
dos  no  seran  responsables  a  la  in- 
demnizacion de  los  arrojados  al 
mar,  perdidos  6  deteriorados . 

§861.  Sidespuesde  habercC  sal- 
vado  el  buque  del  riesgo  que  dio 
lugar  a  la  echazon  se  perdiere  por 
otro  accidente  ocurrido  durante  el 
viaje,  los  efeetos  salvados  y  subsis- 
tentes  del  primer  riesgo  continu- 
aran  afectos  a  la  contribucion  do 
la  averia  gruesa,  segun  su  valor  en 


the  cargo   according   to   the   rules 
laid  down  in  §  854. 

2.  The  value  of  the  ship  in  the 
state  in  which  she  is  found  accord- 
ing to  the  expert's  report. 


gross 


3.  Fifty  per  cent,  of  the 
amount  of  the  freight,  the  other 
fifty  per  cent,  being  deducted  for 
wagres  and  food  of  the  crew. 

The  sum  total  of  the  general 
average,  being  fixed  according  to 
the  provisions  of  this  Code,  is  to 
be  apportioned  pro  rata  among  the 
values  which  have  to  meet  it. 

§  859.  The  underwriters  of  ship, 
freight,  and  cargo  shall  be  bound 
to  pay  for  compensation  in  general 
average  as  much  as  is  required 
from  each  one  of  these  objects 
respectively. 

§  860.  If  notwithstanding  the 
jettison  of  goods,  breaking  of 
masts,  ropes,  and  tackle,  the  ship 
is  lost  in  the  same  peril,  there  is 
no  arround  for  auv  contribution  in 
general  average. 

The  owners  of  the  effects  saved 
shall  not  be  liable  to  make  good 
those  jettisoned,  lost,  or  damaged. 


§  861 .  If  after  having  been  saved 
from  the  risk  which  gave  occasion 
to  the  jettison,  the  vessel  should 
be  lost  in  another  accident  during 
the  voyag*e,  the  goods  saved  and 
remaining  after  the  first  peril  are 
liable  to  contribute  in  general 
averao-e,  nr-r-nvflinp-  to  their  value 


THP:  law  of  SPAIN. 


681 


el  estado  en  que  se  encuentren, 
deduciendo  los  gastos  heehos  para 
su  salvamento. 


§  862.  Si  a  pesar  de  haberse  sal- 
vado  el  buque  y  la  carga  por  con- 
secuencia  del  corte  de  palos  6  de 
otro  dano  inferido  al  buque  delibe- 
radamente  con  aquel  objeto,  luego 
se  perdieren  6  fuereu  robadas  las 
mereaderias,  el  capitan  no  podra 
exigir'  de  los  cargadores  6  con- 
signatarios  qu6  contribuyan  a  la 
indemnizacion  de  la  averia,  ex- 
cepto  si  la  perdida  ocurriere  por 
hecho  del  mis  mo  dueiio  6  eonsigna- 
tario. 


§  863.  Si  el  dueno  de  las  merea- 
derias arrojadas  al  mar  las  reco- 
brase  despues  de  haber  recibido  la 
indemnizacion  de  averia  gruesa, 
estara  obligado  a  devolver  al  capi- 
tan y  a  los  demas  interesados  en 
el  cargamento  la  cantidad  que  liu- 
biere  percibido,  deduciendo  el  im- 
porte  del  perjuicio  causado  por 
la  echazon  3'  de  los  gastos  lieclios 
para  recobrarlas. 

En  este  caso,  la  cantidad  dc- 
vuelta  se  distribuira  entre  el  buque 
y  los  interesados  en  la  carga,  en  la 
misnia  proporcion  con  que  liu- 
bicren  contribuido  al  pago  de  la 
averia. 

§  864.  Si  el  propietario  de  los 
efectos  arrojados  los  recobrare  sin 
lilaber  reclamado  indemnizacion,  no 
estara    obligado    a    contribuir    al 


in  the  state  in  Avhicli  tliey  Avere 
found,  deducting  salvage  ex- 
penses . 

§  862.  If,  notwithstanding  that 
ship  and  cargo  have  been  saved  in 
consequence  of  cutting  away  masts 
or  other  damage  inflicted  intention- 
ally on  the  ship  with  that  object,the 
goods  are  afterwards  lost  or  stolen, 
the  captain  cannot  claim  from  the 
shippers  or  consignees  that  they 
should  contribute  to  make  good  the 
average,  unless  the  loss  was  occa- 
sioned by  the  act  of  the  same 
owner  or  consigiiee. 


§  863.  If  the  owner  of  goods 
jettisoned  should  recover  them 
after  having  received  compensa- 
tion in  general  average,  he  must 
restore  to  the  captain  and  other 
parties  concerned  the  amount  he 
has  received,  deducting  the  value 
of  the  damage  caused  by  the  jetti- 
son, and  the  salvage  charges. 


In  this  case,  the  amount  returned 
must  be  divided  between  the  ship 
and  the  parties  interested  in  the 
cargo  in  the  proportion  in  which 
the}'  contributed  to  the  average. 


§  864.  If  the  owner  of  goods 
jettisoned  should  recover  them. 
Avithout  having  claimed  compcnsa- 
sion,  he  is  not  bound  to  contribute 


682 


APPENDIX  T. 


piago  de  las  averias  gruesas  que 
liubieren  ocurrido  al  resto  del 
cargamento  despues  de  la  echazon. 

§  865.  El  repartimiento  de  la 
averia  g-ruesa  no  tendra  fuerza 
ejecutiva  hasta  que  haya  recaido 
la  conformidad,  6  en  su  defecto  la 
aprobacion  del  juez  6  tribunal  civil 
previo  examen  de  la  liquidacion  y 
audiencia  instructiva  de  los  intere- 
sados  presentes  6  de  sus  represen- 
tantes. 

§  866.  Aprobada  la  liquidacion, 
correspondera  al  capitan  hacer 
efectivo  el  importe  del  reparti- 
miento, y  sera  responsable  a  los 
duenos  de  las  cosas  averiadas  de  los 
perjuicios  que  por  su  morosidad  6 
neglige ncia  se  les  sigan. 

§  867.  Si  los  eoutribuyontes  de- 
jaren  de  hacer  efectivo  el  importe 
del  repartimiento  en  el  termino  de 
tercer  dia  despues  de  haber  sido  a 
olio  requeridos,  se  procedera,  a 
solicitud  del  capitan,  contra  los 
cfectos  salvados  hasta  verificar  el 
pago  con  su  producto. 

§868.  Si  el  interesado  en  recibir 
los  efectos  salvados  no  diero  fianza 
suficiente  para  responder  de  la 
parte  correspondiente  a  la  averia 
gruesa,  el  capitan  podra  diferir  la 
entrega  de  aquellos  hasta  que  se 
haya  verificado  el  pago. 


to  general  average  which  may 
have  occurred  to  the  rest  of  the 
cargo  after  the  jettison. 

§  865.  The  apportionment  of  the 
general  average  is  not  to  be  put 
into  force  until  it  has  received  the 
consent  of  the  parties,  or,  failing 
that,  the  approval  of  the  judge  or 
civil  court,  after  examination  of 
the  adjustment  and  hearing  the 
parties  interested  Avho  may  be 
present,  or  their  agents. 

§  866.  If  the  adjustment  is  ap- 
proved, it  is  for  the  captain  to 
carry  out  the  distribution,  and  he 
will  be  responsible  to  the  owners 
of  the  things  damaged  for  any 
loss  caused  by  his  delay  or  negli- 
gence. 

§  867.  If  the  contributory  parties 
do  not  effect  a  settlement  within 
three  days  of  demand,  proceedings 
may  be  taken  at  the  captain's 
desire,  against  the  goods  saved, 
to  realize  them  for  the  payment. 


§  868.  If  the  party  entitled  to 
receive  the  goods  saved  will  not 
give  sufficient  security  for  his 
share  of  the  general  average,  the 
captain  may  defer  the  delivery 
of  them  until  the  payment  is 
guaranteed . 


THE  LAW  OF  SPAIN. 


683 


§  657.  Si  durante  el  viaje  que- 
dare  el  biique  inservible,  el  capitau 
cstara  obligado  a  fletar  a  su  costa 
otro  en  bvienas  condicioues,  que 
reciba  la  carga  y  la  porteo  a  su 
destino,  a  cuyo  efeeto  teudra  obli- 
g-acion  de  buscar  buque,  no  solo  en 
el  puerto  de  arribada,  sino  en  los 
iumediatos  hasta  la  distancia  de 
150  kilometros. 

Si  el  capitan  no  proporcionare, 
por  indolencia  6  malicia,  buque  quo 
conduzca  el  cargamento  a  su  des- 
tino, los  cargadores,  prcvio  un  re- 
querimiento  al  capitan  para  que  en 
termino  improrrogable  procure 
flete,  podran  contratar  el  fleta- 
niento  acudiendo  a  la  autoridad 
judicial  en  solicitud  de  que  su- 
mariamente  apruebe  el  contrato 
que  liubieren  hecho. 

La  misma  autoridad  obligara  por 
la  via  de  apremio  al  capitan  a  que 
por  su  cuenta,  y  bajo  su  responsa- 
bilidad,  se  lleve  a  efeeto  el  fleta- 
mento  hecho  por  los  cargadores. 

Si  el  capitan,  a  pesar  de  su  dili- 
gencia,  no  encontrare  bucj[ue  para 
el  flete,  depositara  la  carga  a  dis- 
posicion  de  los  cargadores,  a 
quienes  dara  cuenta  de  lo  ocurrido 
en  la  primera  ocasion  que  se  Ic 
presente,  regulandose  en  estos 
casos  el  flete  por  la  distancia  re- 
corrida  por  el  buque,  sin  que  haya 
lugar  a  indemnizacion  alguna. 


§  659.  Devengaran  flete  las  mer 
cancias   vendidas    por   el   capitan 


§  657.  If  during  the  voyage  the 
ship  becomes  unserviceable,  the 
captain  ought  to  charter  at  his  own 
cost  another  vessel  in  good  condi- 
tion, to  take  in  the  cargo  and  carry 
it  to  its  destination,  for  which 
purpose  he  must  look  out  for  a 
ship,  not  only  at  the  port  of  re- 
fuge, but  in  intermediate  ports 
within  150  kilometres. 

If  the  captain,  tlu'ough  indolence- 
or  malice,  does  not  hire  a  ship  to 
carry  the  cargo  on,  the  shippers, 
after  recjuesting  him  to  do  so 
within  a  certain  date,  may  them- 
selves charter  a  ship,  under  the 
approval  of  the  judicial  authority 
as  to  the   contract  made. 


The  same  authority  will  oblige 
the  captain  to  carry  out  the  con- 
tract of  affreightment  which  has 
been  arranged  by  the  shippers,  on 
his  own  account  and  under  his  own 
responsibility. 

Should  the  captain  not  succeed, 
in  spit«  of  all  his  efforts,  in  find- 
ing a  vessel  to  carry  the  cargo  on, 
he  must  warehouse  it  to  the 
shipper's  order,  to  whom  he  nmst 
report  the  case  as  quickly  as  pos- 
sible, and  in  these  circumstances 
the  freight  is  adjusted  according 
to  the  distance  run,  without  any 
occasion  for  compensation. 


§  659.  Freight  is  due  for  goods 
sold  by  the  captain  to  meet  the  in- 


para  atender  a  la  reparacion  indis-  [  dispensable    repairs    of    tlio    hull, 


684 


APPENDIX  T. 


peusable  del  casco,  maquiuaria  6 
aparejo,  6  para  necesidades  impre- 
scindibles  y  iirgentes. 

El  preeio  de  estas  mercaderias 
se  fijara  segun  el  exito  de  la  ex- 
pedicion,  a  saber: 

1°.  Si  el  buque  lleg-are  a  salvo 
al  puerto  del  destino,  el  capitan  las 
abonara  al  preeio  que  obtengan  las 
de  la  misma  clase  que  en  el  se 
vendan. 

2°.  Si  el  buque  se  jjerdiere,  al 
que  hubieran  obtenido  en  venta  las 
mercaderias. 

La  misma  regla  se  observara  en 
el  abono  del  flete,  que  sera  entero 
si  el  buque  lleg-are  a  su  destino,  j 
en  proporcion  de  la  distancia  recor- 
rida  si  se  liubiere  perdido  antes. 

§  660.  Xo  deveng-aran  flete  las 
mercaderias  arrojadas  al  mar  por 
razcjn  de  salvamento  comiin;  pero 
su  importe  sera  considerado  como 
averia  g-ruesa,  contandose  aquel  en 
proporcion  a  la  distancia  recorrida 
cuando  fueron  arrojadas. 

§  661.  Tampoco  devengaran  flete 
las  mercaderias  que  se  hubieren 
perdido  por  naufragio  6  varada,  ni 
las  que  fueren  presa  de  piratas  6 
enemigos. 

Si  se  hubiere  recibido  el  flete 
por  adelantado,  se  devolvera,  a  no 
mediar  pacto  en  contrario. 

§  662.  Eescatandose  el  buque  6 
las  mercaderias,  6  salvandose  los 
efectos  del  naufragio,  se  pagara  el 


engines,  or  tackle,  or  for  urgent 
necessities. 

The  price  of  these  goods  is  to 
be  fixed  according  to  the  result  of 
the  voyage,  in  this  "way: 

1 .  If  the  ship  reaches  her  port  of 
destination  in  safety,  the  captain 
must  make  good  the  price  realized 
by  goods  of  the  same  class  as 
those  sold. 

2.  If  the  ship  is  lost,  that  for 
which  the  goods  were  sold. 

The  same  rule  holds  good  as  to 
compensation  for  freight,  which  is 
to  be  full  freight  if  the  ship 
reaches  its  destination,  and  in  pro- 
portion to  the  distance  run  if  it 
was  previously  lost. 

§  660.  Freight  is  not  due  for 
goods  jettisoned  for  the  common 
safety;  but  its  amount  is  treated 
as  general  average,  taking  it  in 
proportion  to  the  distance  rim 
Avhen  they  were  jettisoned. 


§  661.  'Nor  is  freight  due  for 
goods  which  have  been  lost  in 
shipwreck  or  stranding,  nor  for 
those  which  have  been  captured  b}' 
pirates  or  enemies. 

If  advance  freight  has  been  re- 
ceived it  must  be  returned,  if  there 
has  been  no  stipulation  to  the  con- 
trary. 

§  662.  If  the  ship  or  cargo  are 
ransomed,  or  if  goods  are  saved 
from    shipwreck,     freight    corre- 


THE  LAW  OF  SPAIN. 


685 


flete,  que  corresponda  a  la  distancia' 
reeorrida  por  el  buque  porteando 
la  carga;  y  si  reparado  la  llevare 
hasta  el  puerto  del  destino  se  abo- 
nara  el  flete  por  entero,  sin  per- 
juicio  de  lo  que  corresponda  sobro 
la  averia. 


§  663.  Las  mercaderias  que  sa- 
fran  detorioro  6  disrainucion  por 
vicio  propio  6  mala  calidad  y  coii- 
dicion  de  los  envases,  6  por  caso 
fortiiito,  devengaran  el  flete  in- 
tegro  y  tal  como  se  hubiere  esti- 
pulado  en  el  coutrato  de  fleta- 
mento. 

§  664.  El  aumento  natural  que 
en  peso  6  en  medida  tengan  las 
mercaderias  cargadas  en  el  buque, 
cedera  en  benefieio  del  dueno  y 
devengara  el  flete  correspondiente 
fljado  en  el  contrato  para  las  mis- 
mas  . 

§  665.  El  cargamento  estara  es- 
pecialmente  afecto  al  pago  de  los 
fletes,de  los  gastos  y  dereclios  cau- 
sados  por  el  mismo  que  deban  re- 
embolsar  los  cargadores,  y  de  la 
parte  que  pueda  corresponderle  en 
averia  gruesa,  pero  no  sera  licito 
al  capitan  dilatar  la  descarga  por 
recelo  de  quo  dejc  de  cumplirsc 
csta  obligacion. 

Si  cxistiere  motivo  de  desconfi- 
anza,  el  juez  6  tribunal,  a  instancia 
del  capitan,  podra  aeordar  el  de- 
posito  de  las  mercaderias  hasta  que 
sea  completameute  rcintegrado. 

§  666.  El  capitan  podra  solicitar 
la  venta  del  cargamento  en  la  pro- 


spondiug  to  the  distance  run  by 
the  ship  that  carried  the  cargo 
shall  be  paid;  and  if  the  ship  is 
repaired  and  carries  its  cargo  on 
to  the  port  of  destination,  freight 
in  full  is  allowed,  without  preju- 
dice to  the  responsibility  for  the 


averag-e. 


§  663.  Goods  sufi'ering  deterio- 
ration or  diminution  on  account  of 
vice  propi'e  or  bad  qualit\'  and  con- 
dition of  the  things  in  w^iich  they 
are  packed,  or  from  accident,  shall 
pay  freight  in  full  as  agreed  in 
the  contract  of  affreightment. 


§  664.  Any  natural  increase  in 
weight  or  measure  accruing  to 
goods  carried  ,  shall  be  to  the 
benefit  of  their  owners,  and  freight 
shall  be  paid  according  to  the  con- 
tract for  the  same. 


§  665.  The  cargo  shall  bo  spe- 
cially charged  with  the  payment 
of  (subject  to  lien  for)  freight,  ex- 
penses and  dues  incurred  by  it, 
which  the  shippers  must  reim- 
burse, and  also  of  its  correspond- 
ing share  in  general  average,  but 
the  captain  may  not  delay  the  dis- 
charge from  apprehension  lest  this 
obligation  should  not  be  fulfilled. 

If  there  is  reason  for  Avant  of 
confidence,  the  judge  or  court  may, 
at  the  captain's  instance,  allow  the 
ffoods  to  be  warehoused  until  full 
assurance  is  given. 

§  666.  The  captain  may  demand 
the  sale  of  sufiicient  cargo  to  pay 


686 


APPENDIX  T. 


porcioii  necesaria  para  el  pago  del 
flote,  g-astos  y  averias  que  le  cor- 
respondan,  reservandose  el  dereeho 
de  reclamar  el  resto  de  lo  que  por 
estos  conceptos  le  fuere  debido,  si 
lo  realizado  por  la  venta  no  bastase 
a  cubrir  su  credito. 

§  667.  Los  efectos  cargados  es- 
tarau  obligados  preferentemente  a 
la  responsabilidad  de  sus  fletes  y 
gastos  durante  veinte  dias  a  contar 
desde  su  entrega  6  deposito.  Du- 
rante este  plazo,  se  podra  solicitar 
la  venta  de  los  mismos,  aunque 
haya  otros  aereedores  y  ocurra  el 
case  de  quiebra  del  cargador  6  del 
consignatario. 

Este  dereeho  no  podra  ejerci- 
tarse  sin  embargo,  sobre  los  efectos 
que  despues  de  la  entrega  hubieren 
pasado  a  una  tercera  persona  sin 
malicia  de  esta  y  por  titulo  one- 
roso. 

§  668.  Si  el  consignatario  no 
fuese  hallado,  6  se  negare  a  recibir 
el  cargamento,  debera  el  juez  6 
tribunal,  a  instancia  del  capitan, 
decretar  su  deposito  y  disponer  la 
venta  de  lo  que  fuere  necesario 
para  el  pago  de  los  fletes  y 
demas  gastos  que  pesaren  sobre  el. 

Asimismo  tendra  lugar  la  ven- 
ta cuando  los  efectos  depositados 
ofrecieren  riesgos  de  deterioro,  6 
por  sus  eondiciones  u  otras  circun- 
stancias  los  gastos  de  conserva- 
cion  y  eustodia  fueren  despropor- 
cionados. 

§  677.  Subsistira  el  contrato  de 


freight,  charges,  and  average 
claims,  reserving  the  right  to  claim 
the  rest  for  what  is  due  to  him  on 
these  accounts,  if  the  proceeds  of 
the  sale  are  not  enough  to  cover 
his  claim. 


§  667.  There  is  a  preferential 
claim  on  goods  carried,  for  freight 
and  expenses,  for  twenty  days 
counting  from  their  delivery  or  de- 
posit. During  this  period  their 
sale  may  be  required,  even  if  there 
are  other  creditors,  or  the  shipper 
or  consignee  is  bankrupt. 


This  claim  cannot  be  exercised 
without  embargo  on  goods  whieli, 
after  delivery,  have  passed  into  the 
hands  of  a  third  party,  without 
fraud,  and  for  valuable  considera- 
tion. 

§  668.  If  the  consignee  can  not 
be  found,  or  if  he  should  refuse  to 
receive  the  cargo,  then  the  judge 
or  court  may,  at  the  captain's  in- 
stance, order  it  to  be  warehoused, 
and  authorize  the  sale  of  as  much 
as  was  wanted  to  pay  freight  and 
other  charges  upon  it. 

A  sale  may  also  be  made  should 
the  goods  show  signs  of  spoiling, 
or  should  the  costs  of  their  storage 
and  custody  be  excessive,  owing 
to  their  condition,  or  other  circum- 
stances. 


§  677.  The  contract  of  aflreight- 


fletamento  si,  careciendo  el  capitan  '.  ment  holds  good  if,  failing  instruc- 


THE  LAW  OF  SPAIN. 


687 


de  instrucciones  del  flotador,  sobre- 
viniere  durante  la  navegaciou  de- 
claracion  de  guerra  6  bloqueo.  En 
tal  caso  el  capitan  debera  dirigirse 
al  puerto  neutral  y  seguro  mas  cer- 
cano,  pidiendo  y  aguardando  6r- 
denes  del  cargador,  y  los  gastos  y 
salaries  devengados  en  la  detencion 
se  pagaran  como  averia  comim. 

Si  por  disposicion  del  cargador 
se  hiciere  la  descarga  en  el  puerto 
de  arribada,  se  devengara  por  en- 
tero  el  flete  de  ida. 


§  683.  En  caso  de  arribada  para 
reparar  el  casco  del  buque,  maqui- 
naria  6  (aparejos,  los  cargadores  de- 
beran  esperar  a  que  el  buque  se 
repare,  pudiendo  descargarlo  a  su 
costa  si  lo  estimaren  conveniente. 

Si  en  beneficio  del  cargamento 
expuesto  a  deterioro  dispusieren 
los  cargadores,  6  el  tribunal,  6  el 
consul,  6  la  autoridad  competente 
en  pais  extranjero,  hacer  la  des- 
carga de  las  mercaderias,  scran  de 
cuenta  de  aquellos  los  gastos  de 
descarga  y  recarga. 


§  684.  Si  el  fletador,  sin  concur- 
rir  alo-uno  de  los  casos  de  fuerza 
mayor  expresados  en  el  articulo 
precedente,  quisiere  descargar  sus 
mercaderias  antes  de  llegar  al 
puerto  do  su  destine,  pagara  el 
flete  por  entero,  los  gastos  de  la 
arribada  que  se  hiciere  a  su  in- 
stancia,  y  los  danos  y  perjuicios 
que  se  causaren  a  los  demas  carga- 
dores si  los  hubiere. 


tions  to  the  captain  from  the  ship- 
per, there  should  occur  during  the 
vovage  a  declaration  of  war,  or 
blockade.  In  such  a  case  the  cap- 
tain should  make  for  the  nearest 
safe  neutral  port,  asking  and  wait- 
ing for  orders  from  the  shipper, 
and  the  expenses  and  wages 
during  the  detention  shall  be  paid 
as  general  average. 

If  the  shipper  orders  the  cargo 
to  be  discharged  in  the  port  of 
refuge,  freight  in  full  must  be 
paid  on  it. 


§  683.  In  case  of  putting  in  to 
repair  the  ship's  hull,  machinery, 
or  rigging,  the  shippers  must  wait 
whilst  the  repairs  are  effected,  dis- 
charging at  their  own  cost  if  they 
think  fit. 

If  to  benefit  a  cargo  exposed  to 
deterioration  a  discharge  should  be 
ordered  either  by  the  shippers,  or 
the  court,  or  consul,  or  proper  au- 
tliority  in  foreign  parts,  the  cost  of 
discharge  and  reloading  shall  be 
borne  by  the  shipper. 


§  684.  Should  the  shipper,  with- 
out any  of  the  cases  of  force 
majeure  enumerated  in  the  pre- 
ceding article  taking  place,  desire 
to  discharge  his  goods  before  they 
reach  the  port  of  destination,  he 
must  pay  freight  in  full,  the  ex- 
penses of  putting  into  port  at  his 
instance,  and  any  damage  or  losses 
occasioned  thereby  to  the  other 
shippers,  if  there  be  any. 


688 


APPENDIX  T. 


§  685.  En  los  fletamentos  a  carga 
o-eueral,  cualquiera  de  los  carga- 
dores  podra  descargar  las  merca- 
derias,  antes  de  emprender  su 
viaje,  pagando  medio  flete,  el  gasto 
de  estivar  y  reestivar,  y  cualquier 
otro  perjuicio  que  por  esta  causa 
se  origine  a  los  demas  cargadores. 

§  686.  Hecha  la  descarga  y 
puesto  el  cargamento  a  disposicion 
del  consignatario,  este  debera 
pagar  inmediatamente  al  capitan 
el  flete  devengado  y  los  demas 
gastos  de  que  fuere  responsable 
dicho  cargamento. 

La  capa  debera  satisf  acerse  en  la 
misma  proporcion  y  tiempo  que  los 
fletes,  rigiendo  en  cuanto  a  ella 
todas  las  alteraciones  y  modifica- 
ciones  a  que  estos  estuvieren  su- 
jetos . 

§  687.  Los  fletadores  y  carga- 
dores 110  podran  liacer,  para  el 
pago  del  flete  y  demas  gastos, 
abandono  de  las  me  reader  ias 
averiadas  por  vicio  propio  6  caso 
fortuito. 

Procedera,  sin  embargo,  el  aban- 
dono si  el  cargamento  consistiere 
en  liquidos  y  se  hubieren  derra- 
mado,  no  quedando  en  los  envases 
sino  una  cuarta  parte  de  su  con- 
tenido. 

§  691.  Si  el  buquc  no  pudiere 
hacersc  a  la  mar  por  cerramiento 
del  pucrto  de  salida  li  otra  causa 
pasajera,  cl  fletamento  subsistira, 
sin  que  ninguna  de  las  partes  tenga 
derecho  a  reclamar  perjuicios. 

Los  alimentos  y  salaries  de  la 


§  685.  In  affreightments  for  a 
general  cargo,  any  one  of  the 
shippers  may  discharge  his  goods 
before  the  voyage  begins  on  pay- 
ment of  half  freight,  and  the  ex- 
penses of  stowing  and  restowing, 
and  any  damage  done  to  the  cargo 
of  other  shippers. 

§  686.  When  the  discharge  is 
effected,  and  the  cargo  placed  at 
the  disposal  of  the  consignee,  he 
must  at  once  pay  the  captain  the 
freight  earned,  and  other  charges 
falling  upon  the  cargo. 

Primage  to  be  paid  in  the  same 
proportion  and  time  as  freight,  all 
the  alterations  and  modifications 
applying  to  the  latter  governing 
also  the  former. 


§  687.  Freighters  and  shippers 
cannot,  in  payment  of  freight  and 
other  charges,  abandon  goods 
which  have  been  damaged  by  vice 
propre  or  accident. 

If  the  cargo,  however,  is  of 
liquids,  and  they  have  leaked  so 
as  only  to  leave  a  fourth  part  of 
their  contents  in  the  casks,  they 
may  be  abandoned. 


§  691.  If  the  ship  cannot  put  to 
sea  because  the  port  is  closed,  or 
from  any  other  passing  cause,  the 
contract  of  affreightment  holds 
good  without  any  of  the  parties 
having  a  right  to  claim  damages. 

The  maintenance  and  wages  of 


■% 


i 


THE  LAW  OF  SPAIN. 


689 


tripulaeion      seran      considcrados 
averia  eomun. 

Durante  la  interrupeion,  el  fle- 
tador  podra  por  su  cuenta  des- 
cargar  y  cargar  a  su  tiemjio  las 
mercaderias,  pagando  estadias  si 
demorare  la  recarga  despues  de 
haber  cesado  el  motivo  de  la  deton- 
ciou. 

§  692.  Quedara  rescindido  par- 
cialmeute  el  contrato  de  fletamento, 
salvo  pacto  en  contrario,  y  no 
tendra  derecho  el  capitan  mas  que 
al  fleto  de  ida,  si  por  oourrir  du- 
rante el  viaje  la  declaracion  de 
guerra,  cerramiento  de  puertos  6 
interdiccion  de  relaciones  comerci- 
ales,  arribare  el  buquo  al  puerto 
que  se  le  hubiere  designado  para 
este  caso  en  las  instriiceiones  del 
fletador. 

§  732.  Los  prestadores  a  la 
gruesa  soportaran  a  prorrata  de  su 
interes  respectivo  las  averias  co- 
munes  que  ocurran  en  las  cosas 
sobre  que  se  liizo  el  prestamo. 

En  las  averias  simples,  a  falta 
de  convenio  expreso  de  los  contra- 
tantes,  contribuira  tambien  por  su 
interes  respectivo"el  prestador  a  la 
gruesa,  no  perteneciendo  a  las  es- 
pecies  de  riesgos  exceptuados  en  el 
articulo  anterior. 


the  crew  are 


average . 


considered    general 


During  the  interruption,  the 
shipper  may,  on  his  own  account, 
discharge  or  load  his  goods  at  his 
own  time,  paying  for  demurrage  if 
ho  delays  the  reloading  after  the 
reason  of  the  detention  has  ceased 
to  operate. 

§  692.  The  contract  of  affreight- 
ment is  partially  rescinded,  if 
there  be  no  agreement  to  the  con- 
trary, and  the  captain  cannot  claim 
more  than  the  distance  freight,  if 
by  reason  of  war  being  declared 
in  the  course  of  the  voyage,  the 
closing  of  ports,  or  interdiction  of 
commercial  relations,  the  ship  has 
to  piit  into  some  port  appointed  in 
such  event,  in  the  shipper's  in- 
structions . 

§  732.  Lenders  on  bottomry 
shall  bear,  in  proportion  to  their 
respective  interests,  any  general 
average  occurring  to  the  things 
hypothecated. 

In  particular  averages,  failing 
any  express  stipulation  between 
the  parties,  the  lender  on  bottomry 
shall  contribute  in  respect  of  hi.s 
particular  interest,  if  the  risk  is 
not  one  excepted  in  the  preceding 
Article. 


V  \ 


690 


APPENDIX  U. 


APPENDIX  U. 


THE  LAW  OF   SWEDEN. 


The  provisions  of  the  Swedish  law  which  treat  of  general  average 
are  contained  in  the  Maritime  Law  of  the  12th  June,  1891.  This 
Maritime  Law  is  based  on  a  Bill  drawn  up  by  a  Swedish  committee, 
appointed  on  the  8th  September,  1882,  to  revise  the  maritime  legisla- 
tion, in  collaboration  with  committees  appointed  in  Denmark  and 
Norway  for  the  same  purpose.  One  consequence  of  this  collaboration 
is  that  the  Swedish  Maritime  Law  corresponds  in  substance  with  the 
Maritime  Laws  in  force  in  Denmark  and  Norway. 

The  seventh  chapter  of  the  three  Scandinavian  Maritime  Laws,  com- 
prising §§  187 — 218,  deals  with  Average.  A  special  chapter,  the 
tenth,  comprising  §§  230—266,  treats  of  Marine  Insurance.  The 
regulations  concerning  general  average  are  partly  taken  from  the  older 
Swedish  Maritime  Law  of  the  23rd  February,  1864,  the  essential  prin- 
ciples of  which  are  founded  on  German  law;  in  part  the  former  law 
has  been  modified  in  accordance  with  the  tenor  of  the  York -Antwerp 
Eules  and  the  efforts  to  bring  about  international  uniformity  in  mari- 
time legislation.  Before  the  enactment  of  the  Maritime  Law  of  the 
23rd  February,  1864,  maritime  commerce  was  governed  by  the  Mari- 
time Law  of  the  12th  June,  1667,  and  the  Insurance  and  Average 
Ordinances  of  the  2nd  October,  1750. 

The  following  translation  of  portions  of  the  Maritime  Law  of  the 
12tli  June,  1891,  can  be  consulted  not  only  for  the  provisions  of  the 
Swedish  law,  but  also,  as  the  editors  have  indicated  in  Appendices  H 
and  O,  for  those  of  the  other  Scandinavian  States.  The  few  differences 
in  their  respective  provisions  are  indicated,  and  the  arrangement  and 
numbering  of  the  sections  is  the  same  in  all.  For  the  notes  to 
Chapter  VII.  the  editors  are  indebted  to  Mr.  Per  Hasselrot,  average 
adjuster,  of  Stockholm. 


THE  LAW  OF  SWEDEN.  691 


EXTRACTS  FBOM  THE  MARITIME  LAW  OF  THE  12th  JUNE, 

1891. 

Chapter  VII. — Average. 

§  187(a).  All  damage  intentionally  done  to  ship  or  cargo  in  order 
to  save  ship  and  cargo  from  any  danger  threatening  (6)  both,  as  well 
as  every  other  sacrifice  made  for  such  purpose  and  all  damage  and 
loss  occasioned  thereby  (c),  shall  be  treated  as  general  average. 

General  average  shall  be  paid  by  ship,  cargo  and  freight  in  the 
proportion  of  their  respective  values,  calculated  in  the  manner  men- 
tioned in  §§  207— 211  ((^). 

§  188(e).  The  following  items  in  particular  are  made  good  in 
general  average: 

1.  Cargo  (/)  and  any  ship's  appurtenances  jettisoned  in  order 

to  lighten  the  ship  in  distress  or  to  escape  enemies  or 
pirates,  as  also  cargo  or  ship's  appurtenances  carried 
away  by  the  seas  during  the  jettison,  and  further  any 
other  damage  caused  by  the  jettison  or  by  any  of  the 
steps  necessitated  thereby. 

2.  Masts,  sails  and  gear  cut  away,  and    anchors    and    chains 

slipped,  in  order  to  save  ship  and  cargo  from  any  danger 
threatening  both,  for  instance  in  order  to  escape  stranding 
or  collision,  and  all  damage  occasioned  thereby  (^r). 

3.  Any  damage  done  to  ship  or  cargo  to  prevent  fire  or    to 

extinguish  a  fire  alreadv  broken  out,  or    to    allow  the 


(«)  This  Article  is  intended  to  give  a  general  definition  of  the  term  "general 
average." 

(*)  It  is  sufficient  that  the  danger  is  threatening  ;  it  need  not  be  already  operative, 
nor  immediately  impending. 

(c)  According  to  §  189,  damage  or  loss  only  mdirectly  or  accidentally  connected  with 
the  measures  for  the  preservation  of  ship  and  cargo  is  not  general  average ;  nor  are 
such  expenses  as  are  incurred  in  the  normal  course  of  the  voyage  (which  were  formerly, 
but  incorrectly,  often  called  "petty  average")  general  average.  §  153  of  the 
Maritime  Law  provides  in  this  respect  that  the  owner  of  the  ship  shall  pay  all 
shipping  dues,  towage,  quarantine  and  other  similar  expenses  connected  with  the 
voyage,  from  the  loading  port  to  the  port  of  discharge. 

{d)  "  §§  207—222  "  in  the  Danish  Code. 

[e)  This  Article  specifies  the  commonest  cases  of  general  average.  Some  resti-icting 
and  supplementary  provisions  are  to  be  found  in  §§  189  and  190. 

(/)  Conf.  §  190,  No.  2,  regarding  jettison  of  deck  cargo. 

[g)  For  instance,  damage  which  the  mast  causes  when  falling  down  on  being  cut 
away. 

Y  Y  2 


692  APPENDIX  U. 

water  in  the  ship  access  to  tlio  pumps,  or  to  free  Ihe 
decks  from  seas(h). 

4.  The  cost  of  assistance  employed  in  distress  to  save  ship  and 

cargo  from  any  danger  threatening  both,  as  -vvell  as  all 
damage  done  to  ship  or  cai'go  by  any  ship  requested 
to  assist. 

5.  Any  damage  done  to  ship  or  cargo  on  account  of  the  ship 

being  intentionally  run  aground  in  order  to  avoid  any 
greater  danger  threatening  both(f). 

6.  Any  damage  done  to  ship  or  cargo  and  any  expense  in- 

curred in  order  to  get  the  ship  off  the  ground  and  bring 
her  and  the  cargo  into  safety.  If  the  voyage  is  discon- 
tinued because  the  ship  cannot  be  floated,  or  because  she 
is  declared  unfit  to  be  repaired  (/c),  only  such  damage 
and  expenses  as  were  incurred  before  it  was  discovered 
that  the  ship  could  not  proceed,  are  deemed  to  be  general 
average  (I). 

7.  Any  expenses  incurred  on  account  of  the  necessity  of  seeking 

a  port  of  refuge  for  the  safet}-  of  ship  and  cargo,  for 
instance  when  the  vessel  is  no  longer  seaworthy  (m),  or, 
when  the  continuation  of  the  voj'age  would  expose  ship 
and  cargo  to  obvious  danger  owing  to  the  outbreak  of 
war,  or  accidental  drifting  of  ice  (n). 


[h)  This  Article  should  be  read  in  connection  with  §  190,  No.  6. 

{i)  The  Danish  and  Norwegian  Codes  add  at  the  end  of  the  paragraph  the  words, 
"  but  only  in  so  far  as  the  act  may  be  considered  a  sacrifice."  It  follows  from  this 
sub-section  that  damage,  which  results  from  the  ship  not  being  able  to  keep  the  sea  and 
being  intentionally  run  aground,  is  not  always  to  be  reckoned  as  general  average.  If 
ship  and  cargo  are  in  such  distress  that  total  loss  is  inevitable  if  the  ship  be  not  run 
aground,  this  measure  does  not  imply  any  sacrifice,  but  only  an  attempt  to  save  what 
can  be  saved.  There  ii<  then  a  stranding  but  not  a  voluntary  one,  and  consequently 
no  general  average.  But  on  the  other  hand,  the  apportionment  of  the  average  is  not 
unconditionally  excluded  when  the  ship  is  run  aground,  because  she  is  nearly  sinking, 
or  is  driving  ashore  or  against  rocks.  Even  in  such  cases  there  can  be  a  sacrifice  ;  for 
instance,  if  the  master  could,  by  jettisoning  cargo  and  pumping,  keep  the  ship  afloat 
until  a  port  is  reached,  but  nevertheless  chooses  to  sacrifice  the  ship  in  order  to  save 
the  valuable  cargo. 

{k)  See  §  6,  infra,  p.  707. 

(?)  Any  sacrifice  made  for  the  purpose  of  saving  the  ship  and  cargo  when  the  impos- 
sibility of  continuing  the  voyage  is,  or  ought  to  have  been  known,  is  consequently  not 
general  average ;  but  the  loss  falls  on  the  party  in  whose  interest  it  is  incurred. 
According  to  §  193,  there  can  be  general  average  even  if  the  ship  alone  or  the  cargo 
alone  is  wholly  or  partially  saved. 

[m)  Calling  at  a  port  of  refuge  can  consequently  be  general  average,  even  if  for  the 
purpose  of  repairing  damage  to  the  ship,  which  is  not  general  average. 

(w)  By  this  is  meant,  for  instance,  the  case  of  the  ship  encountering  ice  in  waters 
where  it  was  not  to  be  expected,  and  in  such  movement  that  she  runs  the  risk  of 


mM 


THE  LAW  OF  s\vp:dp:n.  693 

The  following-  are  specially  included  in  the  said  expenses,  i.e.  : 

Pilotage,  liglithouse-,  beacon-,  harbour-,  and  other  shipping  dues 
at  the  port  of  refuge  (o);  the  cost  of  discharging,  storing, 
reloading  and  stowing  the  cargo,  when  the  discharge  is 
necessary  in  order  to  get  the  ship  into  the  port  of  refuge, 
or  is  found  requisite  for  the  same  reason  tJiat  necessitated 
the  vessel's  calling  at  the  port  of  refuge  (p); 

The  w-ao-os  of  master  and  crew  and  their  juaintenance  at  the 
port  of  refuge  during  the  ship's  stay  at  such  port  for  the 
reason  wdiich  necessitated  the  call  at  such  port  of  refuge, 
unless  the  said  expenses  could  have  been  saved  by  dis- 
charging the  crew.  If,  however,  the  delay  is  prolonged 
for  any  other  reason,  the  wag^es  and  maintenance  of  the 
master  and  crew  during  the  prolongation  of  the  stay  are 
not  recoverable:  as,  for  instance,  -when  the  vessel  is  de- 
layed from  proceeding  by  ice  or  any  other  cause  dependent 
upon  the  state  of  the  weather,  or,  Avhen  the  repairing  of 
the  vessel  is  unnecessarily  delayed.  Sliould  the  voyage  be 
discontinued  at  the  port  of  refuge,  only  the  expenses  in- 
curred previous  to  the  decision  as  to  the  continuation  of 
the  voyage  may  be  included  in  tlie  general  average. 

No  diminution  of  the  cargo,  on  account  of  evaporation  or 
leakage,  nor  any  other  damage  sustained  by  the  cargo 
owing  to  the  delay  at  the  port  of  refuge,  shall  be  allowed 
as  general  average,  nor  any  expense  incurred  in  order  to 
avoid  such  damage;  nor  shall  damage  sustained  by  the 
cargo  in  the  discharge  or  reloading  at  the  port  of  refuge 
be  considered  general  average,  unless  the  damage  has  been 
sustained  because  the  discharge  and  reloading  had  to  be 
effected  bv  means  of  other  vessels  or  in  any  other  unusual 
•  manner  (q). 


driving  ashore  or  of  being  crushed.  Expenses  incurred  by  calling  at  a  port  of  refuge 
on  account  of  hindrance  by  ice  are  not  allowed  as  general  average.     (See  ^  190,  No.  7.) 

{o)  Outward  shipping  dues  at  the  port  of  refuge  arc  general  average  if  the  voyage 
is  not  discontinued  at  the  port  (the  common  benefit  principle). 

(p)  When  the  discharge  is  undertaken  solely  for  the  benefit  of  the  cargo— for 
instance,  in  order  to  dry  it,  when  wet,  so  as  to  prevent  further  damage— the  cost  of 
discharging  and  reloading  is  consequently  not  general  average. 

(q)  The  difference  between  this  provision  and  that  of-  the  York-Antwerp  Rules  of 
1890  should  be  noted.  For  the  allowance  of  damage  to  the  cargo  in  this  case  as 
general  average,  very  convincing  evidence  is  required  in  practice  that  the  damage  is 
actually  the  result  of  the  discharge  and  reloading  at  the  port  of  refuge  having,  on 
account  of  special  circumstances  there,  been  undertaken  in  an  unusual  manner  involving 
special  danger. 


694 


APPENDIX  U. 


Extra  expenses  caused  at  tlie  port  of  distress  on  account  of 
the  dangerous  nature  of  the  cargo,  shall  not  be  included 
in  general  average. 

The  expense  of  the  temporary  repair  at  the  port  of  refuge 
of  damage,  not  reckoned  under  general  average,  shall  be 
allowed  as  general  average,  provided  any  expense  otherwise 
necessary  and  allowable  as  such  average  is  thereby 
saved  (r). 

8.  Any  damage  and  loss  incurred  in  consequence  of  the  cargo 

being  used  in  cases  of  distress  to  enable  the  ship  to 
proceed  on  the  voyag-e,  or  otherwise  for  the  preservation 
of  ship  and  cargo,  or  Avlieu,  also  in  cases  of  distress, 
the  ship's  appurtenances  are  used  for  other  purposes  than 
those  for  which  they  were  originally  intended.  General 
average  also  includes  bunker  coals  of  a  steamer  or  any 
other  stores  intended  for  the  working  of  the  engines, 
used  in  order  to  float  the  ship,  to  pump  the  ship  when 
leaking  (s),  or  to  move  the  ship  to  and  from  the  dis- 
charging place,  or  for  the  actual  discharge  and  reloading 
at  a  port  of  refuge,  whenever  the  cost  connected  there- 
with would  otherwise  be  cbargeable  in  general  average. 
Stores  consumed  (t)  in  making  or  leaving  a  port  of 
refuge,  or  otherwise  used  on  account  of  any  prolongation 
of  the  voyage,  are,  on  the  otlier  hand,  not  recoverable, 
even  should  such  prolongation  have  been  caused  by  a 
general  average  act(u). 

9.  Any  damage  intentionally  done  to  ship  or  cargo  in  order 

to  facilitate  a  defence  against  enemies  or  pirates,  or 
which  ship  or  cargo  may  suffer  during  the  defence,  and 
the  ammunition  used  for  such  purpose,  as  well  as  any 
sum  or  sums  paid  for  rescuing  or  ransoming  the  ship 
and  cargo. 

10.  The  expenses  of  medicine,  nursing  and  subsistence  for  any. 


{■/•)  The  principle  of  substituted  expenses  has  here  been  employed.  This  principle  may 
probably  be  used  as  a  basis  for  allowance  in  general  average  in  other  analogous  cases, 
although  in  practice  great  caution  is  shown  in  this  matter. 

(s)  Damage  to  a  ship's  pumps  occasioned  by  pumping  in  order  to  keep  the  water  out 
is  not  compensated  as  general  average.     (See  §  190,  No.  4.) 

[t]  The  Danish  Code  reads  :  — "  Expenses  caused  by  making  or  leaving,  &c." 

(u)  This  exception  has  been  made  for  practical  reasons.  The  articles  are,  however, 
in  this  case  used  for  the  purpose  for  which  they  are  intended,  although  the  consump- 
tion, in  consequence  of  special  circumstances,  is  increased.  The  wages  of  the  master 
and  crew,  and  their  maintenance  during  the  voyage  to  and  from  the  port  of  refuge, 
are  also  not  allowed  in  general  average.     (See  §  188,  No.  7.) 


!l 


THE  LAW  OF  SWEDEN.  695 

person  (v)  injured  in  a  defence  against  enemies  or 
pirates,  or  in  the  execution  of  an}'  measure  taken  to  save 
the  ship  and  cargo,  and  burial  expenses  for  any  person 
killed,  as  well  as  any  increase  of  expense  suffered  Jjy 
the  owner  in  procuring  fresh  hands  to  take  the  ^lace 
of  those  who  have  been  killed  or  wounded. 

1 1 .  Freight  lost  on  account  of  general  average  (x) . 

12.  Any  loss  and  expense  incurred  in  raising  funds   for  the 

payment  of  such  expenses  as  are  recoverable  in 
general  average;  i.e.,  commission,  interest  and  insurance 
premium  on  money  advanced,  bottomr}'  premium  when 
the  monies  must  be  obtained  by  means  of  a  bottomry 
bond,  and  any  loss  incurred  through  difference  of  price 
when  goods  are  sold  in  order  to  procure  money  at  a  port 
of  refuge. 

13.  The  pay  of  the  agent  employed  to  attend  to  the  matters 

connected  with  the  average  (y) . 


(r)  The  Danish  and  Norwegian   Codes   substitute     ' '  member   of  the   crew ' '    for 
"  person." 

(.r)  Concerning  loss  of  freight,  §  151  contains  the  general  rule  that  freight  shall  not 
be  paid  for  goods  which  do  not  exist  at  the  end  of  the  voyage,  unless  they  have  dis- 
appeared in  consequence  of  their  perishable  nature,  or  in  consequence  of  bad  packing, 
or  otherwise  through  the  shipper's  fault,  or  have  been  sold  during  the  voyage  for 
account  of  their  owner.  On  the  other  hand,  according  to  Swedish  law,  it  is  not  a 
necessary  condition  for  payment  of  freight  that  the  goods  shall  be  delivered  at  the  port 
of  destination.  In  the  event  of  the  ship  being  lost  during  the  voyage,  or  being  declared 
irreparable  (see  i  6,  infra,  p.  707),  the  contract  of  affreightment  ceases  to  be  in  force, 
but  distance  freight  is  to  be  paid  for  goods  still  remaining.  This  freight  is  to  be  calcu- 
lated according  to  the  length  of  that  portion  already  performed  of  the  voyage  specified 
in  the  contract,  in  proportion  to  the  whole  voyage.  Still,  proper  allowance  must  be 
made  for  the  time  which  the  voyage  has  taken,  and  the  particular  difficulties  and 
expenses  connected  therewith,  in  comparison  with  the  remaining  portion  of  the 
voyage.  If  the  parties  cannot  agree  as  to  the  distance  freight  payable,  the  amount 
must  be  iixed  by  arbitration.  Distance  freight  is  also  payable  when  the  contract 
of  affreightment,  for  other  reasons  than  those  Just  mentioned,  is  annulled  before  the 
completion  of  the  voyage,  as  when  the  whole  or  an  essential  portion  of  the  cargo,  at 
the  port  of  refuge,  is  liable  to  deterioration  on  account  of  the  delay  incurred  by  the 
repair  of  the  ship.  The  owner  of  the  cargo  is  at  liberty  to  hand  over  the  goods  in 
lieu  of  the  distance  freight.  Section  151  provides  that  should  freight  have  been  paid  in 
advance  for  goods,  for  which,  according  to  what  has  been  stated,  the  charterer  is  not 
bound  to  pay  any  freight,  such  advance  shall  be  refunded,  unless  some  special  stipula- 
tion has  been  made.  An  undertaking  by  the  shipowner  to  pay  the  premium  for  the 
insurance  of  the  freight  advance  is  considered  as  implying  an  agreement  that  the 
advance  of  freight  shall  not  be  refunded  in  case  of  accident. 

{y)  On  the  other  hand,  the  oivner  is  not  considered  to  be  entitled  to  compensation 
in  general  average  for  personal  inconvenience  in  connection  with  the  average. 
(Decision  of  the  Supreme  Court  of  10th  January,  IDOO,  concerning  S.S.  Xorge.) 


()9G  APPENDIX  U. 

14.  Any  expense  in  eonueetiou  Avitli  the  extendiug  of  protest, 
survey  and  valuation  (z),  or  for  procuring  evidence  re- 
quired for  the  adjustment  of  the  average,  as  well  as 
expenses  for  drawing  up  the  average  adjustment  (Dis- 
pache) . 

§  189  (a).  Damage  done  by  accident  during  the  carrying  out  of  some 
measure  for  the  preservation  of  ship  and  cargo,  even  should  a  sacri- 
fice thereby  be  rendered  unnecessary,  as  also  any  damag-e  and  loss  only 
indirectly  or  accidentally  connected  with  such  measure,  shall  not  be 
included  in  general  average.  The  following  losses  are  consequent!}' 
not  made  good  in  general  average: 

1.  Topmast  broken  by  the  force  of  the  ^vind  during  the  process 

of  cutting  away  the  mast,  even  should  such  cutting  away 
he  thereby  suspended; 

2.  Damage  to  ship,  or  cargo,  by  storm,  fire,  theft  or  any  other 

accident  during  the  stay  at  the  port  of  refuge  (b). 

3.  Any  loss  caused  by  the  cargo  not  being  delivered  in  proper 

time  owing  to  general  average; 

4.  Any  increase  in  the  cost  of  insurance  or  any  loss  of  expected 

freight  caused  by  the  delay  in  connection  with  the  average. 

§  190  (cj.  In  general  average  the  following  items  are  not  compen- 
sated rthat  is  to  sav): 

1.  Goods  loaded    without    the    master's    knoAvledge,  and    monies, 

securities  or  other  valuables,  which  have  not  been  declared 
in  the  manner  mentioned  in  §  143  (d). 

2.  Goods  carried  as  deck  cargo  (e),  when  jettisoned,  or  in  any 


{£)  The  cost  of  a  "  control-survey,"  made  by  a  partner,  is  not  allowed  as  general 
average.  (Decision  of  the  Supreme  Court  of  10th  January,  1900,  concerning 
S.S.  Korge.) 

(a)  The  object  of  this  Article,  as  of  §  190,  is  to  give  in  a  negative  manner  a  stricter 
definition  of  the  term  "  general  average." 

{b)  The  consequence  hereof  seems  to  be,  that  the  cost  of  averting  or  providing  an 
indemnity  against  such  damage,  for  instance  the  cost  of  fire  insurance,  is  also  not  to 
be  allowed  as  general  average.  The  practice  is  not  quite  uniform  and  clear  in  this 
matter. 

(c)  This  Article  comprises  cases  which,  in  conformity  with  §  188,  would  be  included 
in  general  average,  but  for  different  reasons  are  excluded  therefrom.  The  principal 
point  of  view  may  here  have  been  the  difficulty  (admitting  that  general  average  could 
exist  in  these  cases)  of  effectually  preventing  quite  ordinary  particular  damage,  such 
as  ordinary  wear  of  gear  and  engines,  from  being  treated  as  general  average,  and  in 
consequence  charged  to  other  persons  than  the  one  on  whom  it  should  primarily  fall. 

(d)  See  infra,  p.  711. 

(e)  See  §  117,  iu/ra,  p.  711. 


THE  LAW  OF  SWEDEN.  697 

similar  way  sacrificed  or  <laniaood,  unless  the  jettison  has 
been  eiiected  iu  order  to  liglit>eii  the  ship  Avheu  aground  (ee) . 
Not  only  are  goods  stowed  on  the  ship's  open  decks,  or 
in  the  ship's  boats,  or  hung-  oAcr  the  side  considered  deck 
cargo,  but  also  goods  loaded  in  any  covered  spaces  -which 
are  not  -wholly  or  partially  enclosed  by  the  ship's  extended 
sides  or  do  not  otherwise  afford  sufficient  security  against 
damage  or  the  danger  of  being  carried  away  by  the 
seas  (f) . 

3.  Ship's  appurtenances    thrown    overboard,    or    in    any  similar 

manner  sacrificed  or  damaged,  whilst  lying  on  deck  at  the 
time,  the  deck  nor  being  their  proper  place. 

4.  Damage  caused  by  carrying  a  press  of  sail,  even  if  such  press 

is  carried  to  avoid  stranding  or  to  escape  an  enemy  or 
pirates;  damage  to  sails  otherwise  caused,  or  any  damage 
to  the  engines  or  boilers  of  a  steamer,  unless  such  damage 
is  sustained  when  endeavouring  to  float  the  ship;  damage 
to  a  ship's  pumps  while  pumping  in  order  to  keep  the 
Avater  ou.t(g). 

5.  Any  mast,  spar  or  other  ship's  gear  cut  away,  when  previously 

broken,  even  should  such  measure  have  been  necessary  to 
avoid  a  danger  to  ship  and  cargo  (/i). 

6.  Damage  to  cargo  by  water,  or  by  any  other  measure  adopted 

to  extinguish  a  fire,  in  case  of  its  heating  or  igniting  spon- 
taneously, and  any  damage  which,  in  the  quenching  of  a 
fire  otherwise  commenced,  is  suffered  by  that  portion  of 
the  cargo  which  already  had  caught  fire(0. 

7.  Any  expense  caused  by  the  ship  being  obliged  to  call  at  a 

port  of  distress  on  account  of  insufficient  provisioning,  or 
any  other  Ava'nt  of  proper  equipment,  or  on  account  of 
hindrance  by  ice,  or  for  any  other  reason  dependent  upon 
the  state  of  the  weather  (k) . 


[ee]  As  here  only  the  goods  jettisoned  are  excluded  from  contribution  in  general 
average,  it  seems  according  to  the  general  provision  ia  §  188,  No.  1,  that  damage  done 
to  the  ship  by  jettisoning  deck  cargo  can  and  ought  to  be  allo-wed  as  general  average, 
even  -when  the  jettison  of  the  goods  is  not  allowed  as  such.  But  this  question  is  not 
decided  by  the  law  Courts,  and  the  practice  is  in  this  matter  variable  and  uncertain. 

(/)  This  is  to  be  decided  according  to  circumstances,  and  the  expression  does  not 
include  every  superstructure. 

{g)  Coals  used  to  -work  the  pumps  are  allowed  iu  general  average  ;   >>  188,  No.  8. 

[h)  This  provision  is  in  conformity  with  No.  4  of  the  York- Antwerp  Rules,  1890. 

(J)  In  neither  of  these  cases  can  the  owner  of  the  goods  be  said  to  suffer  any  damage 
by  measures  taken  to  extinguish  fire.  (Cf.  No.  3  of  the  York-Antwerp  Rules, 
1890.) 

{k)  The  cost  of  calling  at  a  port  of  refuge  ou  a(;count  of  drift-ice  is  allowed  as 
general  average.     (-^  188,  No.  7.) 


698 


APPENDIX  U. 


§  191.  The  apportionment  of  damage  resulting  from  general  average 
is  not  precluded  by  the  fact  that  the  danger  which  occasioned  the 
average  was  caused  by  the  default  of  some  person.  No  compensation 
in  the  general  average  shall,  however,  benefit  such  person  in  default. 
If  the  danger  Avas  caused  by  any  fault  or  neglect,  for  Avhich  the  owner 
of  the  ship  is  answerable  in  accordance  with  §  8  (I)' he  shall  not  be 
entitled  to  compensation  in  general  average. 

In  case  of  error  of  judgment  on  the  part  of  the  master,  or  the  person 
acting  on  his  behalf,  with  regard  to  the  nature  of  the  danger  or  the 
measures  taken  to  avoid  it,  the  damage  should  nevertheless  be  appor- 
tioned as  in  general  average;  the  owner  of  the  ship,  however,  forfeits 
his  right  to  compensation,  unless  the  measure  may  be  excused  by 
the  exceptional  nature  of  the  circumstances  under  which  it  was  adopted. 
Any  person  thus  forfeiting  the  right  to  compensation,  or  being  com- 
pelled to  contribute  to  the  average,  shall  have  the  right  to  recover 
his  loss  from  the  person  legalh'  responsible  for  the  damage. 

§  192.  The  apportionment  of  damage  in  general  average  is  not 
precluded  by  the  fact  that  the  object  of  the  sacrifice  was  not  attained. 

§  193.  Apportionment  of  damag-e  in  general  average  may  also  take 
place,  although  the  ship  or  cargo  is  entirely  sacrificed  for  the  purpose, 
or  although,  subsequent  to  the  average,  only  the  ship  or  only  the  cargo 
is  saved,  whether  entirely  or  in  part(m). 

§  194.  In  ease  a  sacrifice  must  be  made,  it  is  the  duty  of  the  master  to 
see  that  no  greater  loss  is  incurred  than  is  required  for  the  purpose. 
When  a  jettison  of  cargo  or  of  ship's  appurtenances  takes  place, 
whatever  is  heavier  or  of  less  value  shall  first  be  thrown  overboard, 
and  the  lighter  and  more  valuable  goods  kept  as  long  as  possible, 
provided  the  danger  admits  of  this  being  done. 

If  the  master  has  by  any  fault  caused  more  damage  or  loss  than 
was  necessary,  the  provisions  of  §  191  shall  apply. 

(?)  §  8  reads  as  follows: — "  The  owner  is  responsible  with  ship  and  freight  for 
damage  through  fault  or  neglect,  in  the  service,  of  the  master  or  any  of  the  crew. 
This  law  also  applies  in  cases  where  the  damage  is  caused  by  some  person  who,  at  the 
request  of  the  owner  or  master,  may  be  working  in  the  ship's  service,  without 
belonging  to  the  crew.  The  owner  shall  have  the  right  to  recover  his  expenses  from 
the  person  causing  the  damage." 

{tn)  This  rule  is  not  in  conformity  with  German  law.  According  to  the  rule  it  is 
general  average  if  the  sacrifice  from  the  beginning  comprehendel  the  whole  ship  or 
the  whole  cargo,  and  consequently  intended  not  the  pht/stcal  preservation  of  both  ship 
and  cargo,  but  only  the  physical  preservation  of  the  ship  and  the  saving  of  the  value 
'of  the  cargo,  or  rice  rersd  ;  or  if  the  sacrifice  was  not  able  to  prevent  the  loss  of  the 
whole  ship  or  the  whole  cargo.  Another  matter  to  be  noticed  is,  that  on  account  of 
§  216  an  apportionment  of  the  damage  cannot  take  place,  when  all  the  objects  which 
i^hould  contribute  are  lost,  either  in  consequence  of  the  danger  to  avoid  which  the 
sacrifice  has  been  made,  or  on  account  of  average  incurred  later  on. 


« 

I 


THE  LAW  OF  SWEDEN.  699 

§  195.  Before  taking  any  measure,  whicli  may  lead  to  general 
average,  the  master  shall,  in  case  the  danger  so  admits,  call  the  best 
and  most  experienced  of  the  crew  to  a  council.  A  record  of  the 
council  held  shall,  as  soon  as  possible,  be  made  in  the  log-book  by 
the  master,  or  shall  otherwise  be  drawn  up  by  him  where  no  log-book 
is  kept,  in  order  to  be  produced  when  the  protest  is  being  extended. 
Everything  of  importance  for  the  adjustment  of  the  average  shall 
be  inserted  in  the  said  record,  and  especially  a  minute  statement  re- 
garding the  cause  of  the  sacrifice,  and  also,  if  possible,  a  complete 
statement  of  the  property  sacrificed,  or  other  information  as  to  the 
extent  of  the  damage  (n). 

§  196.  Damage  to  a  ship  or  her  appurtenances  shall  be  valued  by 
surveyors,  appointed  in  the  manner  prescribed  in  §  41  (o),  at  the  place 
where  the  repairs  are  executed  if  effected  during  the  voyage,  but 
otherwise,  at  the  port  where  tlie  voyage  terminates.  In  the  valua- 
tion, the  estimated  cost  of  repairing  each  separate  injury  shall  be 
stated  specifically,  and  whenever  it  is  considered  that  damaged  appur- 
tenances ought  to  be  replaced  by  new  ones,  the  cost  of  the  new  as 
well  as  the  value  of  the  old  shall  also  be  stated. 

Any  damage  due  to  the  age  of  the  ship  or  to  the  defect  of  the 
gear  (p),  or  any  other  similar  reason,  should,  in  the  valuation,  be  kept 
apart  from  the  damage  caused  by  the  average. 

§  197.  In  calculating  the  damage  to  a  ship  or  her  appurtenances, 
the  amovmt  of  the  valuation  shall  be  the  amount  allowed  for  the 
damage,  when  no  repairs  are  done  or  the  valuation  is  lower  than  the 
cost  of  the  repairs  executed;  when  it  is  higher,  the  actual  costs  of  the 
repairs  shall  on  the  otheii  hand  be  the  amount  allowed  for  the  damage. 

§  198.  When  compensation  is  given  for  damage  to  an  iron  ship,  the 
amount  shall  be  made  good  in  full  for  any  damage  to  hull  and  to 
iron  masts  and  spars,  if  the  ship  at  the  time  of  the  average  Jias  not 
been  five  years  afloat  (g);  should  such  damage  occur  later  than  five 
but  before  the  expiration  of  ten  years,  one-sixth  shall  be  deducted, 
new  for  old,  and  one-third  if  the  ship  has  been  afloat  beyond  that 
time.  Any  damage  to  a  ship's  engines  shall  be  compensated  in  full 
if  the  engines  have  not  been  in  use  for  three  years  when  the  damage 


(«)  lu  conformity  with  §  59  the  master  alone  is  responsible  for  anj'  decision  which 
he  has  come  to  after  a  general  council  of  those  on  board. 

{o)  See  infra,  p.  708. 

[p)  The  Danish  and  Norwegian  Codes  say  :   "  Any  damage  due  to  age  or  decay." 

[q)  The  Danish  and  Norwegian  Codes  add:  "Reckoned  from  the  date  of  the 
commencement  of  the  first  voyage." 


700  appi:ndix  u. 

occurs;  ii'  liappenin<i-  later,  but  before  the  ong'ines  liave  beou  six  years 
in  use,  one-sixth  shall  be  deduct'ed ;  and  if  thev  have  been  in  use  for 
more  than  six  years,  one-third  shall  be  deducted.  Any  damage  to 
masts  and  spars  of  Avood  and  to  standing-  gear  shall  be  made  good  in 
full  if  the  ship  has  not  been  one  year  afloat,  and  damage  to  boilers  ir) 
and  any  other  damage  shall  also  be  paid  in  full  if  the  ship  has  not 
been  afloat  half  a  year  when  the  average  took  place;  if  any  damage 
occurs  later,  one-third  shall  be  deducted,  with  the  exception,  how- 
ever, of  anchors,  which  are  eom])eusated  in  full,  and  of  cables,  for 
which  one-sixth  only  is  to  be  deducted. 

In  case  of  a  wooden  ship  the  damag-e  to  the  hull  shall  be  compensated 
in  full,  if  the  ship  has  not  been  two  years  afloat  when  the  average 
occurred;  if  the  damage  takes  place  at  any  subsequent  time,  one-third 
is  to  be  deducted,  new  for  old.  Any  other  damage  shall  be  compen- 
sated according  to  the  rules  regarding  iron  ships. 

From  the  amount  of  compensation  thus  estimated  there  shall  be 
deducted  the  value  as  found  at  the  survey  of  the  things  replaced  by 
new  ones,  or  of  their  net  proceeds  if  they  have  been  sold  by  auction. 

If  the  ship  is  to  be  metalled  anew,  the  compensation  is  to  be  calcu- 
lated in  the  folloAving  manner,  i.e.,  after  the  value  as  metal  of  the 
damaged  sheathing  has  been  deducted  from  tlie  cost  of  remetalling  the 
ship  with  the  same  material,  having  the  same  weight  as  the  damaged 
plates  when  new,  the  remaining  amount  shall  be  made  good  A\dth  the 
following  deductions,  i.e.,  for  copper  or  yellow  metal  one-sixtieth,  and 
for  any  other  metal  one-thirtieth  for  each  full  month  of  thirty  days 
since  the  damaged  metal  was  put  on  the  ship.  If  copper  or  yellow 
metal  has  been  on  the  ship  for  more  than  five  3'ears  and  any  other 
metal  for  more  than  two  years  and  a  half,  no  compensation  shall  be 
made. 

§  199.  If  by  general  average  the  sliij)  is  either  totally  lost,  or 
damag-ed  to  such  an  extent  that  she  is  declared  unfit  to  be  repaired  (s), 
the  amount  of  the  compensation  paid  shall  be  the  estimated  value 
of  the  ship  at  the  time  the  loss  took  place,  with  the  deduction  of  the 
net  value  of  whatever  may  have  been  saved. 

§  200.  Compensation  for  goods  sacrificed  in  general  average  shall  be 
calc\dated  at  the  current  prices  for  such  goods  at  the  port  of  destination 
on  the  ship's  arrival  there,  or,  should  the  remainder  of  the  cargo  never 
arrive  at  such  port,  at  the  prices  ruling  at  the  place  Avhere  the  voyage 
terminates;  freight,  customs  and  other  expenses,  Avliich  the  owner  of 
the  cargo  may  save,  shall,  however,  be  duly  deducted.     If  the  goods 


(r)  The  words  "  and  damage  to  boilers''  tiro  not  in  the  Danish  or  Norwegian  Code. 
(s)  See  §  G,  infra,  p.  707. 


THE  LAW  OF  SWEDEN.  701 

have  been  sold  at  a  port  of  distress  and  the  estimated  oompensation 
is  lower  than  the  net  proceeds  of  the  sale  less  the  freight  saved,  the 
latter  amount  shall  be  made  good  in  general  average. 

If  a  current  price  cannot  be  fixed,  the  value  shall  be  ascertained 
by  experts  appointed  in  the  manner  prescribed  by  §  41  (t). 

§  201.  For  goods  damaged  in  general  average  the  amount  to  be 
made  good  is  the  difference  between  the  value  of  the  goods  in  an 
undamaged  state,  as  found  in  tlie  manner  prescribed  by  §  200,  and 
the  value  of  the  goods  in  their  damaged  condition  less  the  deductions 
prescribed  in  the  same  paragraph.  If  the  goods  have  been  sold  before 
the  adjustment  of  the  average,  the  proceeds  of  the  sale  shall  represent 
the.  lattei-  value,  Avhich  shall  otherwise  be  decided  by  experts  ap- 
pointed in  the  manner  prescribed  by  §  41  (t). 

§  202.  If  cargo,  lost  or  damaged  in  general  average,  has  previously 
diminished  in  value  on  account  of  particular  average,  or  through 
deterioration,  or  for  any  other  reason,  or,  if  any  goods  damaged  in 
general  average  have  subsequently  decreased  in  value  owing  to  cir- 
cumstances in  no  Avay  connected  with  the  average,  an  amount  corre- 
sponding to  such  diminution  shall  be  deducted  from  the  amount  of 
compensation. 

The  amount  to  be  deducted  shall  be  fixed  by  a  valuation  by  experts 
appointed  in  the  manner  prescribed  by  §  41  (^).  When  such  valua- 
tion is  made,  particular  attention  shall  be  paid  to  damage  done  on 
the  same  occasion,  or  by  the  same  cause,  to  other  goods  of  similar 
description,  which  have  not  been  damaged  in  general  average. 

§  208.  In  general  average,  no  compensation  shall  be  made  for  cargo, 
in  respect  of  which  no  bill  of  lading  has  been  issued,  or  regarding 
the  loading  of  which  no  reliable  information  is  obtainable,  either  by 
any  statement  in  the  manifest  or  cargo-book,  or  otherwise.  The 
master,  crew  and  passengers  shall,  however,  be  allowed  compensation 
for  clothing  and  travelling  effects,  when  the  loss  thereof  in  the  average 
is  confirmed  on  oatli(M). 

§  204.  Freight  for  cargo  lost  in  general  average,  or  sold  at  a  port 
of  distress  to  procure  funds  for  joint  requirements,  shall  be  compen- 
sated with  the  amount  wliich  would  have  been  paid  if  the  goods  had 


{()  There  is  no  exiiress  refereuce  to  ^Wl  in  the  Danish  or  Norwegian  Code. 

(m)  The  regulations  in  this  Article  have  been  made  on  account  of  the  necessity  of 
controlling  claims  for  the  loss  of  goods  when  the  goods  said  to  have  been  sacrificed 
may  actually  not  have  been  on  board.  Conf.  §  190,  No.  1.  In  the  Norwegian  and 
Danish  Codes  it  is  not  stated  that  the  proof  of  the  loss  of  personal  effects  must  be 
sriven  on  oath. 


702  APPENDIX  U. 

existed  when  the  ship  arrived  at  the  port  where  the  goods  ought  to 
have  been  delivered,  or  in  case  the  voyage  is  discontinued,  at  the 
port  of  termination  of  the  voyage.  Any  expense  which  the  owner 
of  the  ship  may  have  saved  in  consequence  of  the  sacrifice  or  sale 
of  the  goods  shall  be  deducted  from  the  amount  of  compensation  (aj). 

§  205.  If  anything  which  has  been  damaged  in  general  average  is 
subsequently  lost,  or  suffers  additional  damage  in  particular  average, 
and  it  can  be  assumed  with  certainty  that  the  loss  would  have  been 
sustained,  wholly  or  partially,  in  the  latter  average,  had  not  the  general 
average  previously  occurred,  the  damage  shall  either  not  be  compen- 
sated in  the  general  average,  or  else  the  amount  of  compensation 
shall  bo  reduced  so  far  as  in  each  case  it  may  be  proved  proper.  The 
same  rule  shall  apply  if  anything,  lost  in  general  average,  would  have 
been  lost  or  damaged  in  a  subsequent  particular  average,  should  the 
property  still  have  remained  on  board  {y) . 

§  206.  Any  damage  or  loss  which  is  to  be  referred  partly  to  general, 
partly  to  particular  average,  and  any  expense  incurred  in  the  two 
averages  jointly,  shall  be  fairly  divided  between  the  two. 

§  207.   The  ship  contributes  to  general  average  upon — 

1.  Her  value  on  arrival  at  the  port  where  shi^J  and  cargo  sepa- 

rate, ascertained  by  a  survey  in  accordance  with  §  41. 

2.  The  amount  of  the  damage  to  the  ship  allowed  for  compen- 

sation in  general  average,  provided  the  said  damage  has 
not  been  repaired. 

In  case  any  improvement  has  been  made  to  the  ship  subsequently 
to  the  average,  or  any  repairs  have  been  effected  of  damage  not  sustained 
in  general  average,  the  value  of  such  improvement  or  repairs,  as  esti- 


{x)  The  owner  shall  have  compensation  for  his  actual  loss  but  no  more  ;  and  if,  in 
case  the  cargo  had  been  delivered  at  the  port  of  destination,  he  would  have  had  to 
incur  expenses  which  are  now  saved  (as,  for  instance,  costs  of  discharging,  harbour  or 
canal  dues),  his  real  loss  is  not  the  amount  of  the  gross  freight,  but  the  gross  freight 
less  the  expenses  saved. 

[ij]  This  Article  expresses  the  natiiral  principle  that  whatever  has  been  sacrificed 
shall  not  thereby  be  in  a  better  situation  than  that  which  the  sacrifice  was  intended  to 
save.  One  must  suppose  that  what  is  sacrificed  would  have  shared  the  fate  of  that 
which  is  not  sacrificed.  Damage  sustained  by  the  cargo  during  a  jettison  through 
water  coming  into  the  hold  is  not  contributed  for,  if  the  ship  later  on  springs  a  leak 
and  is  filled  with  water,  or  if  the  cargo  is  lost  in  a  later  casualty.  If  a  mast  is  cut 
away  and  the  ship  is  afterwards  stranded  and  becomes  a  wreck,  only  that  value  is 
allowed  in  general  average  which  the  mast  would  have  had  at  the  place  of  stranding 
as  a  part  of  the  wreck.  This  Article,  as  its  language  shows,  is  not  applicable  to  the 
expenses  which  the  owner  of  the  damaged  object  has  incurred  for  repairing  the  general 
average  damage  before  the  particular  average  took  place. 


THE  LAW  OF  SWEDEN.  703 

mated  by  surveyors,  shall  be  deducted  from  the  value  of  the  ship 
ascertained  by  the  survey  (z) . 

§  208.   The  cargo  contributes  to  general  average  upon — 

1.  The  value  of  all  the  goods  which  were  on  board  at  the  time 

of  the  casualty,  and  still  remain  when  cargo  and  ship 
separate,  the  said  value  to  be  ascertained  for  undamaged 
goods  as  provided  in  §  200  and  for  damag-ed  goods  in 
the  manner  stipulated  by  §  201  (a). 

2.  The  amount  due  to  any  owner  of  cargo  in  compensation  of 

goods  sacrificed  or  damaged  in  general  average  during 
the  voyage. 

3.  The  amount  which  the  owner  of  the  ship  is  bound  to  pay 

to  the  owner  of  cargo  in  compensation  of  goods  which' 
during  the  voyage  have  been  lost,  damaged,  or  sold  by 
the  master  for  the  requirements  of  the  ship(&). 

§  209.  The  freight  contributes  to  general  average  upon — 

1.  One  half  of  the  amount  of  freight  earned  when  ship  and 
cargo  separate  (c). 


(«)  The  ship  contributes  to  general  average  on  her  value  as  ascertained  by  a  legal 
survey  and  not  on  her  selling  value  when  she  has  not  been  condemned  (declared  unfit 
to  be  repaired  ;  see  §  6,  infra),  and  the  sale  has  thus  not  been  necessary.  (Decisions  of 
the  Supreme  Court  of  the  10th  December,  1897,  regarding  S.S.  Manningham  and 
of  the  13th  July,  1903,  regarding  S.S.  Turret  Age.)  The  value  fixed  by  the  legal 
survey  does  not  absolutely  form  the  basis  if  it  is  proved  to  be  too  low.  (Decision  of 
the  Supreme  Court,  10th  January,  ,1900,  regarding  S.S.  Xorge.)  The  valuation 
made  on  the  arrival  of  the  ship  at  the  port  where  ship  and  cargo  separated  was 
accepted  in  preference  to  a  valuation  made  elsewhere  in  connection  with  an  accurate 
survey  of  the  damage.  (Decision  of  the  Supreme  Court,  7th  April,  1902,  regarding 
S.S.  Aberfoyle.) 

(«)  If  goods  are  undamaged  and  a  special  valuation  has  not  been  made,  the  invoice 
value  is  usually  taken  as  the  basis.  Should  damaged  goods  have  been  sold  previous  to 
the  adjustment  of  the  average,  the  contributory  value  may,  in  conformity  with  §  201, 
consist  of  the  proceeds  of  the  sale,  even  if  the  sale  is  not  carried  out  by  public  auction. 

{b)  The  Danish  Code  adds  a  reference  to  §  149. 

(c)  Owing  to  the  difficulty  of  detei-mining  in  every  case  with  perfect  exactness  the 
amount  of  the  expenses  which  the  owner  would  have  avoided  by  the  discontinuance  of 
the  voyage,  and  of  the  freight  which  has  been  saved  by  the  sacrifice,  the  contributory 
value  of  the  freight  has  been  fixed  at  one-half  of  the  gross  amount.  There  are  no 
provisions  as  to  the  liability  of  freight  in  general  average  when  the  ship  is  let  on  time 
charter.  A  definite  usage  in  this  matter  cannot  be  considered  as  existing.  The 
adjusters  generally  make  the  freight  contribute  on  one-half  of  the  amount  of  the  voyage 
freight,  without  always  deciding  how  the  contribution  of  the  freight  is  to  be  appor- 
tioned between  the  owner  and  the  time -charterer.  The  outlines  of  the  Swedish  law 
relating  to  the  payment  of  freight  are  given  above  (p.  695).  The  opinion  of  the  Courts 
is  that  disputes  concerning  the  amount  of  the  freight  which  has  actually  to  be  paid 


704 


APPENDIX  U. 


2.  One  half    of    the  amount  of    the  compensation  payable  in 
general  average  for  lost  freight. 

If  no  certain  freight  has  been  agreed  upon,  it  shall  be  calculated- 
according  to  the  rules  laid  down  in  §  150  (d). 

§  210.  If  an  advance  of  freight  has  been  made,  and  the  owner  of 
the  ship  is  under  no  obligation  to  repay  it  in  case  of  misfortune,  the 
said  owner  shall  not  be  bound  to  contribute  to  general  average  in 
respect  of  the  advance  (e). 

§  211.  In  calculating  the  values  upon  which  general  average  is  to 
be  apportioned  in  pursuance  of  §§  207 — 210,  deduction  shall  be  made, 
not  only  of  contributions  to  any  subsequent  general  average,  which 
has  taken  place  during  the  voyage,  but  also  of  any  expense  incurred 
to  save  or  preserve  the  property  upon  which  the  general  average  is 
apportioned,  provided  the  said  expense  is  not  recoverable  in  the 
average  (/). 

§  212.   The  following  items  do  not  contribute  to  general  average: 

1.  Provisions,  coals  and  other  requisites  for  the  working  of  the 

engines,  and  ammunition  of  war. 

2.  Wages  of  master  and  crew. 

o.  Clothing  and  travelling  requisites  of  persons  on  board  and 
whatever  they  carry  about  their  persons. 

If,  however,  any  of  the  effects  mentioned  in  No.  3  have  been  sacri- 
ficed or  damag-ed  in  general  average,  the  owner  thereof  shall  participate 
in  the  payment  of  the  average  in  proportion  to  the  amount  of  compen- 
sation due  to  him.(g). 

§  213.  The  adjustment  and  settlement  of  general  average  shall  take 
place  at  the  port  where  ship  and  cargo  separate,  or  where  the  adjust- 


cannot  be  finally  decided  in  accordance  with  the  rules  concerning  adjustment. 
(Decisions  of  the  Supreme  Court  of  the  5th  May,  1896,  regarding  the  sailing  ship 
Ingomar ;  of  the  10th  January,  1900,  regarding  S.S.  Norgc,  and  of  the  13th  July, 
1903,  regarding  S.S.  Turret  Affc.) 

[d)  See  infra,  p.  712. 

(e)  As  mentioned  above  (p.  G9o),  any  advance  of  freight  for  goods  lost  must,  in 
conformity  with  §  151,  be  refunded,  unless  stipulations  to  the  contrary  have  been 
made.  For  an  advance  of  fi-eight  made  without  such  obligation  of  refunding,  the 
owner  of  cargo  instead  of  tbe  shipowner  has  to  participate  in  the  payment,  and  the 
advance  contributes  in  proportion  to  its  whole  amount.  According  to  usage  the 
advance  of  freight  is  generally  put  in  the  adjustment  as  a  special  contributory  subject, 
on  account  of  the  possibility  of  the  interests  being  insured  by  diiferent  underwriters. 

(/)  This  provision  agrees  with  No.  17  of  the  York- Antwerp  Rules,  1890. 

[g)  See  also  §  179,  i»fra,  p.  715,  which  exempts  loans  on  bottomry  from  contribution. 


THE  LAW  OF  SWEDEN.  705 

meut  of  averages  is  generally  made  for  such  port  and  in  pursuance 
to  the  law  of  the  place  (h). 

Adjustments  of  averag-es  in  tliis  country  are  made  by  adjusters 
specially  appointed  for  the  purpose  (Dispachor)  (i). 

§  214.  It  is  the  duty  of  the  master,  Avitliout  an}-  delay,  to  cause 
the  adjustment  of  the  average  to  be  made.  If  any  person  interested 
in  the  average  desires  such  adjustment,  he  has  the  right  to  demand 
it(k). 

Ever}-  person  concerned  in  the  averao^  shall  be  obliged  to  deliver 
to  the  adjuster  all  documents  which  the  latter  may  consider  necessary 
for  the  adjustment  and  apportionment,  and  otherwise  supply  him  with 
information. 

It  shall  be  the  dutj-  of  the  adjuster,  whenever  a  request  for  an 
adjustment  of  averag-e  is  made,  as  soon  as  possible  to  summon  by 
notice,  to  be  inserted  in  the  Official  Gazette  and  in  a  local  newspaper, 
all  persons  who  participate  in  the  average  to  state  in  writing,  within 
a  certain  prescribed  short  time,  whatever  they  may  deem  expedient 
for  the  maintenance  of  their  rights,  and  to  send  to  him  anv  document 
to  which  they  wish  to  refer.  If  any  of  the  documents  delivered  are 
found  incomplete  the  adjuster  should,  as  soon  as  possible,  request  the 
respective  party  to  furnish  the  necessary  information.  When  the 
time  prescribed  in  the  notice  expires,  or,  if  no  complete  documents  have 
been  delivered  by  the  time  appointed,  when  complete  delivery  lias 
taken  place,  it  shall  be  the  duty  of  the  adjuster  to  have  the  adjust- 
ment of  the  average  drawn  up  in  duplicate  Avithin  two  months,  and 
on  the  day  announced  by  notice  posted  up  in  tlie  town  court,  and  by 


(h)  The  words  "  or  where  ....  such  port,"  are  not  in  the  Danish  or  Norwegian 
Code. 

(i)  The  Danish  and  Norwegian  Codes  add  :  "Any  disputes  as  to  the  correctness  of 
average  adjustments  are  settled  by  the  Courts." 

Adjusters  appointed  by  his  Swedish  Majesty  are  at  present  found  in  the  towns  of 
Stockholm,  Gothenburg,  Hemosand  and  MalmiJ.  If  an  adjustment  (dispache)  is  not 
appealed  against  within  a  certain  time  (thirty  daja  after  the  decision  of  the  adjuster 
is  given)  at  the  town  court  in  the  town  where  the  adjustment  was  issued,  the 
adjustment  is  binding  on  the  parties  as  a  lawfully  enacted  determination  of  the  Court. 
An  average  adjustment  is  consequently  not  in  Sweden,  as  in  several  other  countries, 
only  a  declaration,  founded  on  special  knowledge  of  the  subject,  but  not  absolutely 
binding  on  the  parties.  An  adjustment  in  Sweden  possesses  real  legal  validity.  The 
Swedish  adjuster  thus  occupies  to  some  extent  the  position  of  a  judge.  Nevertheless, 
no  special  qualifications  are  required  for  the  post  of  adjuster,  though  all  the  adjusters 
in  practice  at  the  present  time  (1910)  have  passed  .an  examination  in  law. 

§^  326,  329  and  330  contain  certain  provisions  for  the  procedure  to  be  followed  in 
case  a  party  interested  wishes  to  contest  an  adjustment ;  and  every  adjustment,  not 
appealed  against  in  the  manner  prescribed,  is  declared  by  §  329  to  be  valid. 

{k)  This  sentence  is  not  in  the  Danish  or  Norwegian  Code. 

L.  Z  Z 


706  APPENDIX  U. 

advertisement  in  the  Official  Gazette  and  in  one  of  the  local  newspapers ; 
the  said  adjustment  to  be  provided  ^vith  an  indorsement  indicating 
the  limit  of  time  within  which  any  person  dissatisfied  with  the  adjust- 
ment can  have  the  case  brought  before  the  Courts  in  order  to  preserve 
his  right  of  pleading.  Of  the  two  copies  one  shall  be  delivered  to 
the  person  who  has  requested  the  adjustment,  the  other  shall  be  kept 
by  the  adjuster  for  exhibition  to  the  other  persons  interested  in  the 
average  (I). 

§  215.  If  any  goods,  mentioned  in  an  average  adjustment  as  lost 
in  general  average,  are  subsequently  found,  or  if  any  damage  entered 
in  the  adjustment  as  general  average  is  afterwards  paid  by  the  person 
duly  bound  to  make  compensation  tlierefor,  the  adjustment  shall  be 
corrected  by  means  of  a  supplementary  statement. 

The  drawing  up  of  the  adjustment  should,  however,  not  be  delayed 
simply  on  account  of  there  being  a  chance  of  recovering  any  goods 
lost,  or  receiving  compensation  for  damage. 

§  216.  For  any  average  contribution  assessed  on  property,  the 
owner  of  that  property  shall  only  be  responsible  with  the  property 
but  not  personally  (m). 

§  217.  No  shij),  liable  to  pay  average  contribution,  may  leave  the 
port  where  ship  and  cargo  separate,  nor  may  any  goods,  liable  to  pay 
a  similar  contribution,  be  taken  possession  of  by  their  owner,  before 
the  contribution  has  been  paid,  or  security  given  in  case  the  amount 
of  the  contribution  has  not,  by  that  time,  been  fixed  (n) . 


(?)  The  whole  of  this  paragi-aph  is  omitted  in  the  Danish  and  Norwegian  Codes. 
The  notification  here  stipulated  is  intended  to  give  all  those  whose  rights  it  concerns 
an  opportunity  of  pleading  before  the  adjuster  and  of  proving  their  rights,  and  also 
of  appealing  against  the  adjustment  in  due  time.  In  conformity  with  §  264,  any 
dispute  regarding  the  liability  of  the  underwriters  under  a  contract  of  marine  insurance 
must  also  be  decided,  in  the  first  instance,  by  an  adjuster.  The  declaration  (dispache) 
of  the  adjuster  is  in  this  case  termed  a  "particular"  adjustment,  as  distinct  from  a 
' '  general ' '  adjiisttnent  concerning  the  apportionment  of  general  average.  The  fee 
for  a  general  adjustment,  as  fixed  by  Royal  Ordinance  of  the  19th  January,  1883,  is  a 
certain  percentage  of  the  values  on  which  the  common  damage  and  cost  are  apportioned, 
with  the  addition,  when  the  ship  in  question  has  been  loaded  with  general  cargo  and 
the  number  of  bills  of  lading  or  freight  notes  exceed  forty,  of  ten  Swedish  kroner  for 
each  bill  of  lading  or  freight  note  above  the  number  mentioned.  For  a  particular 
adjustment  the  amount  of  the  fee  is  the  percentage  fixed  for  a  general  adjustment  and 
calculated  on  the  amount  of  insurance.  The  fee  for  an  adjustment  must  never  exceed 
2,000  Swedish  kroner. 

(w)  Claims  for  average  contributions  have  a  lien  on  ship,  freight  and  cargo  on  board 
under  §  268,  No.  3,  and  §  276,  No.  2. 

(«)  Under  §  155  and  §  156,  paragraph  1,  if  the  average  contribution,  for  which 
goods  are  liable,  is  not  paid  or  deposited,  or  security  given  therefor,  the  master  has 


THE  LAW  OF  SWEDEN.  707 

§  218.  Every  expense  or  damage  caused  by  any  casualty  during 
•a  voyage,  which  is  neither  general  average  nor  is  to  be  apportioned 
on  the  same  principles  as  general  average  in  accordance  with  §  161, 
shall  be  borne  as  particular  average  by  the  property  which  has  suf- 
fered the  damage  or  incurred  the  expense  (o). 

If  any  expenses,  which  are  chargeable  as  particular  average,  liave 
been  incurred  jointly  for  ship  and  cargo,  or  any  certain  portion  of 
the  cargo,  or  for  portions  of  the  cargo  belonging  to  different  owners, 
the  said  costs  shall  be  fairly  divided  between  the  properties  for  Avhich 
they  have  been  incurred,  in  accordance  with  tlie  rules  laid  down  for 
g-eneral  average.  The  expense  of  saving  cargo  shall  be  divided  between 
such  cargo  and  the  freight  payable  thereon  in  proportion  to  their 
respective  values. 

If  any  person,  participating  in  such  average,  should  so  require,  the 
adjustment  and  distribution  of  the  average  shall  be  made  by  the 
proper  adjuster. 

From  Chapter  I. — Ships. 

§  6.  A  ship  which  has  sustained  damage  shall  be  considered  unfit  for 
repairs,  not  only  when  repairs  are  found  to  be  impossible  or  -when 
the  repairs  can  only  be  done  at  another  place  to  which  the  vessel  cannot 
be  conveyed,  but  also  in  the  ease  of  the  ship  not  being  worth  repairing. 
Should  the  question  arise  Avhetlier  the  ship,  after  sustaining  damage, 
should  be  considered  fit  fov  repairs  or  not,  a  report  must  be  made 
by  surveyors  appointed  in  the  manner  prescribed  in  §  41  (p). 

From  Chapter  III. — M.\sters. 

§  32.  During  the  voyage,  the  master  shall  do  everything  in  his  power 
to  keep  the  ship  in  a  seaworthy  condition.  If  tlie  ship  lias  stranded 
or  otherwise  met  with  a  casualty,  whereby  damage  may  be  supposed 
to  have  been  sustained,  it  shall  be  the  duty  of  the  master  immediately 


the  right  to  discharge  the  goods  and  store  them  in  safety  for  account  of  the  respective 
receivers  of  the  cargo.  Under  §  157  the  master,  after  the  goods  liable  to  contribute  to 
general  average  have  been  stored,  has  the  right  to  sell  by  public  auction  as  much 
of  the  goods  as  may  be  sufficient  to  pay  the  claims. 

(o)  Particular  average  can  only  be  defined  negatively — average  Avhich  is  not  general 
is  particular.  Tlie  Maritime  Law  (^  161)  prescribes  that  if  a  ship  is  delayed  at  the 
place  of  loading  after  the  cargo  has  been  loaded,  or  in  any  port  at  which  it  has  called 
during  the  voyage,  by  a  hindrance  mentioned  in  §  159  (outbreak  of  war,  embargo, 
blockade,  &c.),  the  expenses  of  the  delay  (uutil  the  contract  of  affreightment  is 
annulled)  are  to  be  divided  between  the  ship,  the  freight  and  the  cargo,  according  to 
the  rules  of  general  average. 

(p)  See  it'fra,  p.  708. 

/.  z2 


708  APPENDIX  U. 

on  the  arrival  of  the  ship  at  any  port  where  a  survey  can  be  made,, 
to  cause  such  survey  to  be  instituted. 

§  41.  Should  the  ship,  from  any  accident  during-  the  voyage,  have 
suliered  damage  requiring  extensive  repairs  or  causing  considerable 
detention,  the  master  shall  cause  a  survey  of  the  ship  to  be  instituted. 
The  surveyors  shall  not  only  examine  and  appraise  the  damage  sus- 
tained through  the  accident,  and  the  ship  in  her  damaged  condition, 
but  also  recommend  what  means  should  be  adopted  for  the  proper 
repair  of  the  damage,  and  calculate  the  necessary  costs. 

Should  rej^airs  be  effected,  a  new  survey  shall,  on  the  completion 
of  the  repairs,  be  held  in  order  to  ascertain  if  the  ship  is  in  such  a 
condition  that  it  can  proceed  on  the  intended  voyage. 

Should  the  cargo  have  suffered  considerable  damage  from  any 
casualty,  bad  weather  or  similar  occurrence  during  the  voyage  (o),  or 
should  there  be  reason  to  suppose  that  the  condition  of  the  cargo  is 
such  that  special  measures  for  its  preservation  are  required,  or  should 
the  discharge  of  the  cargo  be  found  necessary  on  account  of  damage 
to  tlie  ship,  then  the  master  shall  cause  a  survey  of  the  cargo  to  be 
held.  Should  the  cargo  be  found  damaged,  the  surveyors  shall  report 
their  opinion  as  to  the  cause  of  the  damage  and  suggest  what  steps 
ought  to  be  taken. 

Surveyors  arc  appointed  by  the  magistrate,  or  where  tlie  ship  is 
Ijdng  beyond  the  jurisdiction  of  a  town  by  the  magistrates  of  the 
nearest  town  or  by  the  Crown  bailiff'  (^=kronofogde)  of  the  district  (p). 
When  the  ship  is  in  a  foreig-n  port,  tlie  master  shall  apply  for  the 
appointment  of  surveyors  to  the  authority  competent  so  to  appoint 
according  to  the  laws  and  customs  of  the  port  where  the  survey  is 
to  take  J) lace,  or  to  the  Swedish  Consul  (g).  If  the  ship  is  at  a  port 
where  it  is  not  ciLstomary  for  surveyors  to  be  appointed  by  a  public 
authority,  the  master  shall  obtain  the  opinion  of  experts. 

§  42.  Should  there  be  reason  to  suppose  that  the  cargo  has  been 
damag-ed  during  a  voyage,  the  master  ought  to  have  the  goods  sur- 
veyed by  surveyors  called  in  for  the  purpose  previous  to  the  delivery 
of  the  goods  to  the  consignees  of  the  cargo,  as  mentioned  in  §  332, 
sect.  2.  If  the  question  can  arise  whether  the  damage  has  been  caused 
through  faults  in  the  stowing  of  the  cargo,  or  the  caulking  of  the 
hatchways,  or  through  any  other  similar  fault,  the  master  shall  require 


{o)  The  words  "  from  any  casualty  ....  voyage,"  are  omitted  in  the  Danish  and 
Norwegian  Codes. 

{p)  There  is  no  equivalent  sentence  in  §  41  of  the  Danish  or  Norwegian  Code. 

(7)  §  41  of  the  Danish  Code  does  not  provide  for  the  alternative  application  to  the 
Consul. 


4 


THE  LAW  OF  SWEDEN.  7U9 

the  presence  of  the  surveyors  at  the  opening-  of  the  hatchways  and 
the  examination  of  the  g'oods  (r). 

§  43.  When  the  ship  is  in  distress  the  muster  is  bound  tu  do 
everything-  in  his  power  to  save  and  protect  the  vessel,  and  shall  not 
abandon  her  as  long  as  there  is  liope  of  saving-  her.  Should  safety 
be  found  impossible,  and  the  dang-er  be  so  threatening  that  the  master 
is  obliged  to  abandon  the  ship,  it  is  particularly  his  duty  to  see  that 
the  logbook  and  the  ship's  documents  are  saved,  and  to  take  measures 
for  the  salvage  of  ship  and  cargo,  for  Avhieli  purpose  he  oiight  to 
summon  necessary  assistance. 

Should  salvage  take  place,  the  master  shall  conduct  the  salvage 
•operations,  unless  it  is  prohibited  by  the  laws  of  the  place  or  the 
salvage  contract  prevents  him  from  so  doing.  The  master  shall  cither 
himself  or  through  the  mate  carefully  note  down  everything  salved 
and  also  take  a  note  both  of  the  number  of  men  assisting  in  the  salvage 
and  the  carriage  of  the  goods  to  the  storage  place,  and  of  all  the 
work  done;  and  the  master  shall  moreover  examine,  and  under  his 
signature  attest  the  correctness  of  all  the  accounts  of  expenses  in- 
curred in  the  salvage . 

The  master  shall,  as  soon  as  possible,  cause  a  survey  to  be  instituted 
in  the  manner  prescribed  in  §  41  (s)  for  the  examination  of  the  ship 
and  of  the  goods  salved,  and  shall  see  that  the  latter  are  properly 
taken  care  of. 

§  49.  If  money  be  wanted  when  the  ship  is  away  from  the  port  to 
which  she  belongs,  for  any  of  the  purposes  mentioned  in  §  48  (^), 
the  master  shall  have  the  right  to  procure  the  necessary  means  by 
loan  or  by  selling  part  or  parts  of  what  belongs  to  the  owners,  or 
of  the  cargo.  lit  ease  the  master  has  borrowed  money  or  effected  any 
sale  without  valid  reason,  or  has  raised  a  larger  sum,  or  sold  more  than 
required  for  the  occasion,  the  validity  of  the  rights  of  the  lender  or 
purchaser  will  thereby  in  no  way  be  effected,  provided  the  loan  has 
been  raised  or  the  sale  effected  under  such  circumstances  that  the 
lender  or  ])urchaser  must  be  supposed  to  have  acted  bond  fide. 

§  54.  In  matters  relating  to  a  third  party,  the  master  shall,  in  his 
capacity  of  master,  have  power  to  enter  into  agreements  on   helialf 


()•)  In  the  Danish  and  Norwegian  Codes  the  reference  to  §  332  is  omitted ;  and  in 
the  latter  it  is  further  provided  that  "  the  surveyors  shall  in  Norway  be  appointed  by 
the  byfoged  (judge  of  the  municipal  Court)  or  the  sheriff;  in  foreign  countries  the 
rules  of  the  preceding  article  shall  apply." 

i.s)  The  Danish  and  Norv^egian  Codes  say :   ''  Instituted  according  to  law." 
{t)  7.r.,  for  purposes  connected  with  the  completion  of  the  voyage,  such  as  the  outfit, 
repairs  or  provisioning  of  the  ship. 


'10 


APPENDIX  U. 


of  the  owner  of  tlie  cargo  during'  the  voyag-e  as  regards  the  preserva- 
tion or  further  conveyance  of  the  cargo,  as  also  to  sue  in  cases  affecting 
the  cargo.  Should  money  be  required  for  any  of  the  last  mentioned 
purposes,  the  master  shall  lia\Te  the  power  to  procure  the  necessary 
means  by  loan  or  by  selling  cargo,  and  in  such  cases  the  provisions 
of  §  49  regarding  loans  and  sales  for  the  requirements  of  the  ship 
shall  also  apply  (t<). 

§  55.  Should  the  cargo,  on  being  surveyed  in  conformity  with  §  41, 
be  found  to  be  in  such  a  state  that  it  cannot  be  kept  without  risk 
of  deterioration,  the  master  shall  have  the  right  to  sell  the  same. 
If  the  ship  has  been  lost  or  been  declared  unfit  to  be  repaired,  the 
sale  may  take  place,  although  the  property-  could  be  kept  without 
danger  of  deterioration,  should  the  survey  prove  that  the  cost  of  its 
preservation  and  conveyance  to  the  port  of  destination  would  be 
excessive. 

§  57.  Before  raising  a  loan  or  selling  jDart  of  the  cargo  for  the 
requirements  of  the  cargo,  or  otherwise  adoj)ting  any  special  measure 
on  behalf  of  the  owner  of  the  cargo,  the  master  shall,  when  practicable, 
ask  for  instructions  from  the  owner  of  the  cargo  or  his  appointed 
agent.  If  the  ship  has  been  lost  or  declared  unfit  to  be  repaired,  it 
is  the  dutv  of  the  master,  Avhen  tlie  owner  of  the  cara:o  has  no  ao-ent 
on  the  spot,  or  his  instructions  cannot  be  awaited,  according  to  cir- 
cumstances either  to  for^vard  the  goods  by  the  cheapest  mode  of  con- 
veyance to  the  port  of  destination,  or  to  caiLse  the  same  to  be  stored 
or  sold. 

The  sale  of  a  cargo  should  if  possible  be  effected  by  public  auction. 


From  Chapter  V. — Affreightmext. 

§  109.  Agreements  respecting  the  carriage  of  goods  shall  be  made 
by  a  written  instrument  (charterpartyj  should  any  of  the  parties  go 
desire . 

§  110.  The  chartering  of  a  whole  vessel  does  not,  except  by  special 
agreement,  include  the  open  decks  nor  the  cabins  or  other  spaces  in- 
tended for  the  accommodation  of  the  crew,  or  for  ship's  stores,  provi- 
sions, fuel  or  other  requisites  necessary  for  the  voyage. 

Except  with  the  consent  of  the  charterer,  no  goods  shall  be  carried 
for  any  other  person  on  deck  or  in  any  of  the  above-mentioned  spaces. 
Should  goods  nevertheless  be  so  carried,  the  owners  of  the  ship  must 


[iC)  The  Danish  and  Norwegian  Codes  add:  "For  the  engag-ements  thus  entered 
into  by  the  master  on  account  of  the  cargo-owner,  the  latter  is  only  responsible  with 
the  goods  loaded." 


THE  LAW  OF  SWEDEN.  711 

pay  freight  to  the  charterer  {x),  together  with  such  compensation  for 
the  damage  and  loss  sustained  on  account  of  the  carriage  of  the  goods, 
as  arbitrators  may  decide  to  be  right  (y). 

§  113.  Except  with  the  consent  of  the  charterer,  his  goods  shall 
not  bo  forwarded  in  another  ship  than  the  one  chartered,  unless  any 
of  the  emergencies  referred  to  in  §§  159  and  160  should  cause  such 
action  to  be  adopted.  Should  such  forwarding  nevertheless  take 
place,  the  charterer  shall  be  entitled  to  such  compensation  for  any 
damage  and  loss  sustained  thereby  as  arbitrators  may  find  to  be  due  (2). 

§  117.  Except  with  the  consent  of  the  shipper,  his  goods  are  not 
to  be  loaded  on  deck  or  in  any  of  the  ship's  boats,  nor  hung  over  the 
side. 

§  142.  The  owner  of  the  ship  shall  be  responsible  for  all  loss, 
damage  or  diminution  of  goods,  after  having  received  the  goods  for 
loading  and  previous  to  the  discharge  thereof,  unless  the  loss,  damage 
or  diminution  may  be  supposed  to  have  been  caused  by  sea  perils, 
seizure  by  enemies,  or  any  other  accident  beyond  the  control  of  the 
master  and  crew;  or  else,  by  defective  or  insufficient  packing,  or  by 
the  nature  of  the  cargo  itself  which  made  it  liable  to  bo  easily  deterio- 
rated or  destroyed,  as  for  instance  in  the  case  of  the  heating  and 
combustion  of  grain  cargoes,  the  leaking  or  evaporation  of  liquids, 
or  the  death  of  animals. 

Should  the  cause  of  the  damage  sustained  be  the  defective  condi- 
tion of  the  ship  at  the  commencement  of  the  voyage,  the  owners  of 
the  ship  shall  not  be  liable  to 'pay  compensation,  when  the  defect 
was  not  discoverable  in  spite  of  all  care  being  taken. 

§  143.  A  statement  shall  be  made  to  the  master  of  goods  loaded, 
which  require  special  care  and  attention,  and  such  requirement  shall 
be  conspicuously  marked  on  the  goods;  failing  this,  compensation 
cannot  be  claimed  for  damage  unavoidable  in  the  absence  of  such  care 
as  aforesaid.  No  compensation  is  given  for  monies,  securities  or 
valuables,  unless  they  have  been  declared  as  such,  and  the  value  stated. 

§  149.  When  the  owner  has,  in  accordance  witJi  §  142,  to  make  good 
any  damage,  deficiency  or  diminution  of  the  goods,  or  has  to  pay  com- 
pensation for  goods  sold  for  the  benefit  of  the  ship,  in  accordance 
•with  §  49,  the  amount  of  the  compensation  shall  be  fixed  in  con- 
formity with  the  rules  laid  down  in  §§  200  and  201  respecting  com- 
pensation for  goods  in  general  average. 


{x)   "  At  current  rates  "  :   Danish  and  Norwegian  Codes. 

(2/)  There  is  no  mention  of  arbitratioa  in  the  Danish  and  Norwegian  Codes. 

[z)  See  preceding  note. 


712  APPENDIX   U. 

§  150.  If  the  master  has  taken  goods  on  board  without  having-  agreed 
upon  the  amount  of  freight,  freight  shall  be  paid  at  the  rate  current 
^t  the  port  of  loading  at  the  time  of  loading.  Sliould,  in  ease  of 
an  agreement  having  been  made,  more  goods  be  loaded  than  agreed 
upon,  freight  shall  be  paid  for  such  (excess)  goods  at  the  same  rate 
as  for  the  goods  for  which  the  agreement  has  been  made. 

§  151.  Freight  shall  not  be  paid  for  goods  which  do  not  exist  at 
the  end  of  the  voyage,  unless  the}'  have  disappeared  in  consequence 
of  their  perishable  nature  («),  or  in  consequence  of  bad  packing,  or 
otherwise  through  the  shipper's  fault,  or  have  been  sold  during  the 
voyage  for  account  of  their  owner. 

Should  freight  have  been  paid  in  advance  for  goods  for  which  the 
charterer  is  not  bound  to  pay  any  freight  according  to  the  preceding- 
stipulation,  such  advance  mu^st  be  refunded,  unless  a  special  agree- 
ment has  been  made  to  the  contrary. 

§  152.  Receptacles  containing  liquid  goods  maj-  be  abandoned  by 
their  owner  in  lieu  of  freight  when  more  than  half  the  contents  are 
missing.  This  right,  Avhicli  applies  to  each  separate  vessel,  cannot 
be  claimed  after  the  vessel  has  been  delivered  to  the  consignee,  and 
shall  not  hold  good  if  the  receptacles  were  defective  or  badly  packed 
when  loaded,  and  the  master  has,  in  the  manner  prescribed  in  §  147, 
made  a  note  to  that  effect  on  the  bill  of  lading  in  case  sucli  has  been 
issued. 

§  153.  The  owner  of  the  ship  shall  paj^  all  shipping  dues,  towage, 
quarantine  and  other  similar  expenses  connected  with  the  voyage  from 
the  loading  port  to  the  port  of  discharge,  and  consequently,  for  such 
charges,  compensation  cannot  be  claimed  from  the  charterer. 

§  154.  In  receiving  the  goods,  the  consignee  incurs  the  liability  to 
pay  freight,  and  whatsoever  the  owner  of  the  ship  shall  have  the 
right  to  claim  from  the  charterer  according  to  the  bill  of  lading  or 
other  document,  on  the  strength  of  which  the  goods  have  been  received. 

§  155.  The  master  shall  not  be  obliged  to  deliver  the  goods  before 
the  consignee  has  either  settled  the  claims  mentioned  in  §  154  and 
paid  compensation  for  demurrage  and  any  other  delay  in  the  dis- 
charge, as  well  as  any  average  contribution  and  other  claim  chargeable 
on  the  goods,  or  else  deposited  publicly,  or  in  the  hands  of  a  private 
person  to  be  approved  by  the  master,  the  amount  claimed,  which  the 


(«)  See  ante,  §  14'2. 


\ 


THE  LAW  OF  SWEDEN.  713 

master  is  entitled  to  draw  out  on  delivery  of  the  goods  (7>i.  For 
average  contribution,  the  amount  of  -which  has  not  been  definitely 
fixed,  goods  shall  not  be  retained,  provided  the  consignee  of  the  cargo 
gives  security  for  the  amount. 

The  above  enactment  shall  also  apply  where  the  discharge  of  goods 
takes  place  at  the  port  of  loading  or  during  the  voyage. 

§  156.  Should  the  consignee  of  the  cargo  refuse  to  receive  it,  or 
should  he  be  unknown  or  impossible  to  find,  it  is  the  duty  of  the 
master,  when  practicable,  immediately  to  inform  the  shipper  of  the 
fact.  If  no  person  entitled  to  receive  the  cargo  presents  himself  in 
such  time  as  to  allow  the  discharge  to  be  finished  before  the  expira- 
tion of  the  discharging  time,  or,  should  the  charterparty  relate  to 
general  cargo,  to  take  place  at  the  time  appointed  by  the  master  (c), 
the  latter  shall  cause  the  goods  to  be  discharged  and  safely  stored  for 
account  of  the  respective  consignees  of  the  cargo.  If  the  consignee 
of  the  cargo  fails  to  fulfil  the  duties  incumbent  upon  him  in  order 
to  obtain  possession  of  the  goods,  according  to  §  155,  or  otherwise 
detains  the  ship  whilst  being  discharged,  so  that  the  discharge  cannot 
take  place  in  proper  time,  the  master  shall  have  the  right  to  discharge 
and  store  the  goods  in  the  manner  aforesaid. 

In  case  the  goods  are  stored,  the  master  shall  inform  the  consignee 
of  the  cargo  of  the  measure  taken,  if  the  latter  be  known  and  present 
at  the  place  of  discharge;  otherwise  notice  shall  be  given  in  the  manner 
prescribed  in  §  118  for  similar  cases  (fZ).  Should  the  master  be  de- 
tained for  the  storing  of  the  goqds,  or  otherwise  for  the  discharge, 
over  and  above  the  time  allowed  for  discharging,  without  anv  fault 
or  neglect  on  his  i^art,  the  owner  of  the  ship  shall  be  entitled  to  com- 
pensation for  damage  and  loss,  the  amount  of  the  compensation  ;in 
case  of  dispute  to  be  decided  by  arbitration  but  in  no  case  to  bo  fixed 
at  a  lower  figure  than  for  days  on  demurrage. 

§  157.  If  goods  are  stored  for  any  of  the  reasons  referred  to  in 
§§  140  (e)  or  156,  the  master  shall  hav^e  the  right  to  sell  by  public 
auction  as  much  of  the  goods  as  may  l)e  sufficient  to  cover  the  claims 
mentioned  in  §  155,  besides  custom  diilics  and  other  expenses. 


'Ji)  The  Ddiiish  and  Norwegian  Codes  add  a  proviso  that  in  case  of  dispute  the 
consignee  has  the  right  to  protect  himself  by  arrest  or  prohibition. 

(f)  The  Danish  and  Norwegian  Codes  add  :  "According  to  ^S  1-38,"  which  article 
obliges  the  consignees  of  general  cargo  to  take  their  goods  away  when  the  master  gives 
them  notice  to  do  so. 

{d)  I.e.,  by  publication  in  a  local  new;?paper,  or  in  the  customary  manner  at  the 
place. 

{e)  I.e.,  when  the  same  goods  are  claimed  by  more  than  one  bill  of  lading  holder. 


14 


APPENDIX  U, 


§  160.  In  case  the  ship  is  lost  during-  the  voyage,  or  declared, 
unfit  to  be  repaired,  the  charterparty  shall  cease  to  be  in  force.  It 
shall  be  the  master's  duty,  hoAvever,  for  account  of  the  owners  of  the 
cargo,  to  take  such  measures  regarding  the  cargo  as  are  enjoined  in 
§  57. 

In  such  cases  the  freight  is  to  be  calculated  for  the  distance  sailed 
in  proportion  to  the  full  voyage  to  which  the  charter  refers;  due 
allowance,  however,  being  made  for  the  time  required  for  the  voyage 
and  the  particular  difficulties  and  expense  connected  therewith,  in 
comparison  with  that  of  the  Avhole  voyage  (Distancefreight).  If  the 
parties  cannot  agree  as  to  the  freight  payable,  the  amount  shall  be 
fixed  by  arbitration. 

If  the  owner  of  the  cargo  wishes  to  surrender  the  goods  remaining, 
in  lieu  of  freight,  he  shall  be  at  liberty  to  do  so. 

§  161.  Should  such  hindrance  as  is  mentioned  in  §  159  (/;  occur 
after  the  ship  has  left  the  port  at  which  the  voyage  commenced,  each' 
party  sliall  nevertheless  be  at  liberty  to  annul  the  charterparty,  but 
tho  charterer  shall  pay  distance  freight  for  the  portion  of  the  voyage 
sailed  at  the  time  of  the  annulling  of  the  charter,  as  provided  in 
§  160.  If  the  agreement  is  annulled,  it  shall  be  the  duty  of  the  master, 
for  account  of  the  owner  of  the  cargo,  to  take  such  steps  respecting 
tho  cargo  as  arc  prescribed  in  §  57. 

If  the  ship  is  delayed  at  the  port  of  loading  or  in  any  port  of  call 
during  the  voyage  by  any  such  hindrance  subsequent  to  the  loading 
of  the  cargo,  the  expenses  of  the  detention  shall  be  divided  between 
ship,  cargo  and  freight  according  to  the  rules  of  general  average. 
When  the  agreement  is  annulled  such  apportionment  shall,  however, 
not  be  made  as  regards  expenses  subsequently  incurred. 

§  162.  If  the  contract  is  annulled  on  account  of  such  hindrance  as 
is  referred  to  in  §  159  {g),  and  should,  in  consequence  thereof,  the 
discharge  of  cargo  have  to  take  place,  any  expense  in  connection 
with  the  discharge  shall  be  borne  by  the  charterer  in  case  the 
hindrance  affects  solely  the  cargo;  should  the  hindrance  affect  the  ship 
also,  or  the  ship  alone,  or  should  the  master  have  made  use  of  the 
right  to  annul  the  charterparty,  conferred  upon  him  by  the  same 
section  (K),  the  expenses  of  the  discharge  shall  be  borne  in  accordance 
with  tho  rules  laid  down  in  §  136  (^). 


(/)  I.e.,  in  consequence  of  the  outbreak  of  war,  embargo,  blockade,  prohibition  of 
exportation  or  importation,  &c. 

[g)  See  note  (/),  supra. 

ill)  I.e.,  the  right  to  annul  all  the  contracts,  wlien  those  yielding  half  of  the  fuU 
freight  are  annulled. 

(i)  I.e.,  the  master  must  deliver  the  goods  alongside,  and  the  other  expenses  of 
the  discharge  are  borne  by  the  consignee. 


THE  LAW  OF  SWEDEN.  715 

§  163.  If  the  ship  for  any  reason  be  delayed  at  the  loading  port, 
or  in  an}'  port  of  call  during-  the  voyage,  and  the  delay  is  likel}^  to 
become  of  long  duration,  the  charterer  shall  have  the  right,  provi- 
sional!}', to  discharge  the  goods  belonging  to  him,  provided  he  de- 
posits security  for  the  payment  of  the  claims  referred  to  in  §  155, 
in  the  event  of  the  goods  not  being  reloaded  in  proper  time  at  the 
request  of  the  master.  If  the  ship  is  chartered  by  several  persons, 
the  discharge  of  the  goods  of  one  charterer  may  not  take  place  except 
with  the  consent  of  the  other  charterers,  should  thereby  any  damage 
or  loss  be  sustained  by  them. 

§  164.  If  the  ship  has  had  to  call  at  a  port  of  distress,  having  sus- 
tained damage,  and  a  survey  of  the  cargo,  held  in  the  manner  pre- 
scribed in  §  41,  proves  that  the  whole  or  a  considerable  portion  of 
the  cargo  is  liable  to  deterioration  on  account  of  the  delay  incurred 
for  repairing  the  ship,  the  charterer  shall  have  the  right  to  annul  the 
agreement  in  consideration  of  the  payment  of  distance  freight,  as 
provided  in  §  160;  should  the  ship,  however,  be  chartered  by  several 
persons,  the  right  aforesaid  cannot  be  exercised  if  any  of  the  other 
charterers  insist  on  the  continuation  of  the  vovage. 


"» 


From  Chapter  VI. — Bottomry. 

§  175.  The  master  may  pledge  ship,  freight,  and  cargo,  jointly  or 
separately,  as  security  for  a  bottomry  loan.  Should  the  loan  be  raised 
to  pay  expenses  which  solely  concern  the  cargo,  tlie  cargo  alone  should 
be  pledged.  For  any  other  expenses,  the  cargo  should  not  be  pledged 
except  together  with  ship  and  freight.  If  ship  and  cargo  are  pledged 
jointly,  the  freight  shall  also  be  considered  included  in  the  pledge 
unless  specially  excepted. 

Should  anything  be  pledged  as  security  for  expenses  which  do  not 
concern  the  security  pledged,  and  the  said  security  be  sold  to  pay 
the  claim  on  the  strength  of  such  pledging,  the  owner  of  the  property, 
pledged  sliall  have  the  right  to  recover  the  same  from  the  property 
on  behalf  of  which  the  expense  was  actually  incurred,  with  the  same 
rights  as  would  have  been  held  by  tlie  lender  should  the  latter  pro- 
perty have  been  pledged  as  security. 

§  179.  No  deduction  is  made  from  the  bottomry  debt  for  contribu- 
tions to  general  average  chargeable  on  the  property  pledged.  Should 
the  property  pledged  thereby  prove  insufficient  to  repay  the  loan,  the 
lender  must  bear  the  loss. 

From  Chapter  IX. — Salvage  Compensation. 

§  224.  Any  person  salving  any  wrecked  or  distressed  sliip,  or  her 
cargo,  or  anything  which  has  belonged  to  any  such  ship  or  her  cargo, 


716  APPENDIX  U. 

as  well  as  everyone  assisting  iu  any  such  salvage,  shall  have  the  rig-ht 
to  .receive  salvage  compensation  out  of  the  salved  property.  If  the 
parties  cannot  agree  as  to  the  amount  of  the  salvage  compensation, 
the  Court  shall  decide. 

§  225.  When  deciding  the  amount  of  the  salvage  compensation,  the 
particular  attention  of  the  Court  shall  be  given  to  the  follomng  cir- 
cumstances, i.e. : 

1.  AVhether  the  property  salved  had  been  exposed  to  imnunent 

danger;  whether  the  ship  was  abandoned  by  the  crew; 
whether  the  crew  assisted  in  the  salvage,  or  whether  the 
salvage  was  otherwise  rendered  easier  by  employing  the 
vessel's  own  resources; 

2.  The  danger  to  which  the  salvors  and  their  material  Avere  ex- 

posed, and  the  damage  which  the  salvors  may  have  suffered 
to  life,  health  or  property; 

3.  The  skill  and  energy  by  which  the  salvage  was  carried  out, 

and  the  time  and  work  expended; 

4.  The  number  of  the  crew  assisting  iu  the  salvage,  the  value 

of  the  material  used,  and  the  expense  incurred  by  the  salvors 
themselves  in  the  salvage  operations; 

5.  The  value  of  the  property  salved. 

§  22G.  The  salvage  compensation  should  generally  not  be  fixed 
higher  than  one-third  of  the  -value  of  the  property  salved,  after  de- 
duction of  custom  dues  and  other  expenses  chargeable  on  the  property, 
as  well  as  any  expenses  for  the  preservation,  valuation  and  sale  of 
the  said  property.  If  the  salved  property  is  of  small  value,  or  if 
unusual  trouble  or  danger  was  incurred  in  the  salvage,  the  compensa- 
tion may,  however,  be  fixed  at  a  higher  amount. 

Compensation  for  bringing  the  salved  property  into  safety,  and  for 
the  use  of  boats  or  other  material  for  such  purpose,  is  also  to  be 
included  in  the  salvage  compensation. 

§  228.  If  the  salvors  dispute  between  themselves  regarding  the 
division  of  the  salvage  compensation,  the  Court  shall  decide,  taking 
the  circumstances  mentioned  in  §  225  into  consideration. 

If  a  ship  salves  anything  during  a  voyage,  the  owners  shall  receive 
two-thirds  of  the  salvage  compensation,  if  tlie  ship  is  a  steamer,  other- 
wise one-half,  the  damage  done  to  ship  or  cargo  in  the  salvage  having, 
however,  first  been  paid  from  the  said  compensation,  whereupon  the 
remainder  shall  be  divided  equally  between  the  master  and  the  crew; 
the  portion  due  to  the  crew  shall  be  divided  in  proportion  to  their 
respective  wages.  Agreements  awarding  to  the  master  or  crew  a  smaller 
portion  of  the  salvage  compensation  that  may  be  earned  by  a  ship, 
than  mentioned  above,  shall  be  null  and  void,  unless  the  ship  is  specially 


M 


THE  LAW  OF  SWEDEN.  717 

equipped  for  salvage  operations  or  the  agreement  refers  to  the  carrying 
out  of  any  special  salvage  enterprise. 

§  229.  No  ship  salved  sliall  leave  the  jjlace  to  which  it  has  been 
brought  subsequently  to  the  salvage,  nor  shall  any  salved  cargo  be  re- 
moved by  its  owner,  before  the  salvage  compensation  has  been  paid 
or  security  deposited,  except  with  the  consent  of  the  salvors. 

From  Chapter  X. — Insurance. 

§  250.  If  an  adjustment  of  general  average  has  boon  made  at  the 
proper  place  in  accordance  with  the  laws  of  such  place,  the  under- 
writers shall  be  bound,  not  only  to  compensate  the  proportion  to  be 
borne  by  the  security,  interest,  article  or  other  object  of  insurance, 
but  also  any  proportion  of  damage  in  connection  therewith,  which 
is  to  be  paid  by  any  other  participator  in  the  average,  provided  the 
party  insured  proves  that  he  has  not  been  able  to  recover  such  pro- 
portion. The  aforesaid  liability  is  also  incurred  by  the  underwriters 
even  if  the  security,  interest,  article  or  other  object  of  insurance  should 
have  been  appraised  higher  in  the  average  adjustment  than  the  insur- 
ance value. 

If  no  adjustment  of  average  has  taken  place,  and  such  omission 
is  not  the  fault  of  the  party  insured,  the  said  party  shall  have  the 
right  to  claim  compensation  for  the  full  damage  in  accordance  with 
the  terms  of  the  contract  of  insurance. 

§  251.  If  the  average  is  adjusted  by  the  proper  person  at  tlie  proper 
place,  the  underwriters  cannot  plead  against  tlie  party  insured  that 
any  person,  contrary  to  the  laws  in  force  at  the  place  of  adjustment,, 
has  been  favoured  at  the  expense  of  the  party  insured,  unless  the 
latter  party  is  himself  to  blame  that  his  rights  have  not  been  properly 
looked  after;  the  party  insured  shall,  however,  be  obliged  to  give  up 
his  rights  against  the  person  thus  favoured  to  the  underwriters. 


718 


APPENDIX  V. 


APPENDIX  V 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

In  tho  last  edition  of  this  work,  the  learned  author  set  forth  a 
statement  of  the  law  of  the  United  States,  founded,  in  the  main, 
upon  information  derived  from  Mr.  Gourlie's  valuable  book,  pub- 
lished in  1881.  During  the  thirty  years  which  have  elapsed  since 
this  date,  there  have  been  many  important  decisions  in  the  Courts 
of  the  United  States  which  render  a  full  reconsideration  of  the 
subject  necessary.  For  this  revision  the  editors  have  been  fortu- 
nate in  obtaining-  the  valuable  assistance  of  Mr.  W.  R.  Coe,  a  member 
of  the  Avell-known  firm  of  Messrs.  Johnson  and  Higgins,  average 
adjusters,  &c.,  of  New  York,  and  the  following  statement  of  ;the 
law  and  practice  of  the  United  States  on  the  subject  of  General 
Average  has  been  prepared  by  him. 

General  Principles. 

Similarity  of         The  law  of  general  average  in  the  United  States  closely  parallels 
origin.  ^^^  ^^g  growth  that  of  Great  Britain.    It  should  be  noted  at  the  outset, 

however,  that  as  the  first  decision  mentioning  the  term  general 
average  in  England  was  in  1799  (a),  the  United  States  had  then  be- 
come a  separate  nation,  and  the  common  law,  Avhich  was  taken  over  by 
us  at  the  Declaration  of  Independence,  become  part  of  our  funda- 
mental law,  so  that  the  recorded  law  of  general  average  had  its 
beginning  in  the  United  States  at  a  time  when  English  decisions 
could  not  servo  as  precedents.  Having  been  derived  from  the  same 
continental  sources  and  expounded  by  judges  schooled  alike  in  the 
common  law,  tho  development  was  and  has  been  to  all  intents  and 
purposes  along  the  same  linos,  with  a  few  divergences  due  to  local 
custom,  to  the  attitude  toward  common  carriers  and  insurers,  to 
statutes  relating  to  carriage  by  sea,  and  to  differences  in  judicial 
interpretation  of  the  law. 


{a)  Axle,  p.  18. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

Cases  involving  questions  of  general  average  may  come  under 
the  jurisdiction  of  either  the  District  Courts  of  the  United  States 
(Federal  Courts),  or  of  the  State  Courts.  The  District  Courts, 
however,  have  exclusive  jurisdiction  in  Adrairalt};-  (6),  and  pro- 
ceedings in  rem  against  vessels  and  in  salvage  cases  are  necessarily 
brought  before  them.  In  the  United  States  a  lien  is  given 
for  general  average,  and  as  the  Admiralty  Court  by  its  process  in 
rem  affords  the  most  convenient  remedy  against  the  ship,  it  has 
become  the  Court  before  which  nearly  all  the  cases  involving 
general  average  are  now  heard.  Proceedings  against  cargo  owners 
for  contribution  can  be  had,  and  in  former  years  were  most  fre- 
quently brought,  before  the  State  Courts,  but  the  Federal  Courts 
have  become,  by  a  process  of  selection,  the  favoured  tribunal  for 
cases  involving  general  average,  even  where  the  State  Courts  are 
open  to  the  parties.  It  may  be  pointed  out,  however,  that  in  this 
country,  as  in  England,  the  practice  of  adjusters  is  so  well  estab- 
lished and  so  generally  recognized  to-day  that  litigation  of  general 
average  questions  has  become  very  infrequent;  and  cases  that  come 
before  the  Courts  usually  involve  questions  of  fact,  or  some  com- 
plicated question  of  law,  where  the  sacrifice  is  made  necessary 
by  negligence  or  unseaworthiness. 

The  first  case  of  general  average  contained  in  any  American 
report  is  Broivn  v.  Cormvell(c),  at  a  trial  Court  in  Connecticut  in 
the  year  1773,  in  which  jettison  of  horses  from  on  deck  was  allowed 
in  general  average. 

The  first  reported  case  of  any  moment  in  our  Courts  was  Camp- 
bell V.  The  Alknomac(d),  in  the  United  States  District  Court  for 
South  Carolina  in  1798.  This  case  is  important  as  marking  the 
beginning  of  the  American  rule  as  to  port  of  refuge  expenses.  A 
vessel  was  on  a  voyage  from  Liverpool  to  Charleston,  and  put  into 
Norfolk  in  distress.  In  allowing  contribution  for  the  expenses  the 
Court  said: 

"All  necessary  charges  of  unloading,  reloading, 
anchorage,  pilotage,  storage,  wharfage,  and  other  such  ex- 
penses incurred  at  Norfolk,  together  with  wages  and 
victualling  of  the  crew  from  the  day  of  consultation  on 
board  at  sea  as  to  seeking  a  port,  till  the  day  of  her  leaving 
Norfolk  to  return  here,  must  be  brouglit  into  general 
average." 


719 


{h)  This  jurisdiction  was  conferred  by  the  Constitution,  but  covered  only  cases 
arising  on  the  sea  and  on  tide  waters  ;  in  1845,  by  an  Act  of  Congress,  the  jm-isdic- 
tion  was  extended  to  the  Great  Lakes  and  connecting  waters.  See  The  Gtnesee 
Chief,  12  How.  443  ;  Allen  v.  Xcwhcrry,  21  How.  244. 

(c)   1  Root  (Conn.),  60. 

id)  Bee,  124;  Fed.  Cas.  2350. 


720 


APPENDIX  V. 


Definition  of 

general 

average. 


Another  important  early  case  was  Maggrath  v.  Church  (e),  in 
the  Supreme  Court  of  New  York,  the  judgment  in  which  was  de- 
livered by  Chancellor  Kent,  author  of  Kent's  Commentaries. 

The  first  case,  however,  in  which  the  principles  of  general  average 
were  exhaustively  considered  was  Caze  v.  ReillyiJ),  decided  in  the 
United  States  Circuit  Court  of  Pennsylvania  in  1814.  It  is  inte- 
resting to  note  that  in  this  case  practically  all  the  citations  by  counsel 
and  the  Court  were  from  the  old  continental  text  writers,  ordonnances 
and  laws,  and  that  in  this  and  the  Maggrath  case  Birkley  v.  Fres- 
gravo(g)  was  cited.  The  judgment  in  Caze  v.  Reilly  has  been 
referred  to  with  approval  on  several  occasions  by  the  United  States 
Supreme  Court,  and  as  that  judgment  was  based  so  largely  on  the 
continental  authorities,  it  is  safe  to  say  that  our  law  has  been  much 
influenced  thereby. 

As  Lowndes  has  noted  in  his  Fourth  Edition,  the  decisions  of  the 
Courts  in  either  country'  have  been  regarded  with  deference  in  the 
other,  and  the  tendency  of  the  two,  especially  of  late,  has  been 
towards  uniformity  rather  than  separation.  Lowndes  remarks  (h) 
that  the  American  judges  have  been  the  first  to  arrive  at  conclu- 
sions which  have  afterwards  been  adopted  in  England;  as,  for  in- 
stance, with  regard  to  the  means  taken  to  extinguish  a  fire,  and  in 
allowing  contribution  when  the  vessel  is  in  ballast  or  where  vessel 
and  cargo  are  of  the  same  ownership. 

It  shoidd  bo  observed  that  the  York-Antwerp  Rules  are  embodied 
nowadays  in  nearly  all  contracts  of  affreightment  for  foreign 
voyages,  and  for  many  of  the  longer  voyages  in  the  coasting 
trade.  It  is  interesting  to  note  that  in  an  important  case  the  United 
States  Supreme  Court  has  stated  that  the  York-Antwerp  Eules  relate 
only  to  the  subjects  of  contribution  in  general  average,  and  do  not 
deal  with  the  underlying  principles,  and  that  the  English  Courts 
hold  the  same  view  (^) . 

In  the  matter  of  definition,  no  American  judge  has  succeeded 
in  improving  upon  the  compact  and  comprehensive  definition  of 
general  average  given  by  Lawrence,  J.,  in  Birkley  v.  Presgrave. 
Most  of  the  early  attempts  of  our  judges  to  define  the  subject  deal 
only  with  sacrifices  and  fail  to  include  expenses. 

The  most  comprehensive  treatment  of  the  theory  and  history  of 
general  average  will  be  found  in  Caze  v.  Reilly,  already  cited,  and 


(e)  1  Caines,  195  (1803). 
(/)  3  Wash.  Cir.  Ct.  298  ;  Fed.  Cas.  2538. 
(ff)  1  East,  220. 
(A)  Fourth  Edition,  605. 

(i)  EalU  V.  Troop,  157  U.  S.,  at  p.  412  (1894)  ;   Grcemhlclds  v.  Slephens,  13  Com. 
Cas.  91  ;  [1908]  A.  C.  431. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

in  the  opinion  of  Story,  J.,  in  Columbian  Ins.  Co.  v.  Ashhy  {k), 
in  tlie  United  States  Supreme  Court  in  1839. 

In  the  former  case,  Washington,  J.,  said: 

"  The  object  is  to  incur  a  partial  loss  and  to  risk  a 
minor  or  contingent  danger  to  avoid  the  more  certain  loss 
of  aU." 
In  the  latter  case.  Story,  J.,  states  the  requirements  for  contri- 
bution as  follows: 

"First:  That  the  ship  and  cargo  should  be  placed  in 
a  common,  imminent  peril. 

Secondly:  That  there  should  be  a  voluntary  sacrifice 
of  property  to  avert  that  peril. 

Thirdly:  That  by  that  sacrifice  the  safety  of  the  other 
property  should  be  presently  and  successfully  attained." 

As  to  the  basis  of  general  average,  the  same  eminent  jurist  re- 
marks : 

"  The  principle  on  -which  this  contribution  is  founded 
is  not  the  result  of  a  contract,  but  has  its  origin  in  the 
plain  dictates  of  natural  law"(Z). 

In  Sturgess  v.  Cary  (m),  Curtis,  J.,  says: 

"  The  fact  that  the  peril  impending  over  the  ship  and 
cargo  would  have  destroyed  both  if  not  averted,  so  far  from 
being  inconsistent  with  a  claim  of  this  kind,  is  a  necessary 
prerequisite  to  the  voluntary  act  of  the  master;  and  what 
is  denominated  a  sacrifice  hieans,  not  that  its  subject  was 
destroyed,  or  even  subjected  to  greater  danger  than  it  was 
already  in,  but  that  it  was  selected  to  suffer  alone  and 
thus  avert  the  common  peril." 

And  in  another  case  arising  from  the  same  accident  (?^),  the  same 
judge  said: 

"  It  depends  upon  a  principle  of  natural  justice  that 
they  who  have  received  a  common  benefit  from  the  sacri- 
fice voluntarily  made  by  one  engaged  in  a  common  adven- 
ture should  unite  to  make  good  the  loss  w-hich  that  sacrifice 
occasioned." 
In  the  case  of  the  Star  of  Hope(o),  Clifford,  J.,  says: 

"  General  average  contribution  is  defined  to  be  a  con- 
tribution by  all  the  parties  in  a  sea  adventure  to  make 

(k)  13  Pet.  331. 

(l)  Story,  Equity  Jurisdiction,  p.  490. 

(ill)  2  Curt.  SO ;  Fed.  Cas.  13572. 

(w)  Stio-pis  V.  Can/,  2  Curt.  382  ;  Fed.  Cas.  13573. 

(o)  9  Wall.  203  (U.  S.  Sup.  Ct.). 

L.  3  A 


721 


'22 


APPENDIX  V. 


good  the  loss  sustained  by  one  of  their  number  on  account 
of  sacrifices  voluntarily  made  of  part  of  the  ship  or  cargo 
to  save  the  residue  and  the  lives  of  those  on  board  from 
an  impending  peril,  or  for  extraordinary  expenses  neces- 
sarily incurred  by  one  or  more  of  the  parties  for  the 
general  benefit  of  all  the  interests  embarked  in  the  enter- 
prise. Losses  which  give  a  claim  to  general  average  are 
usually  divided  into  two  great  classes:  (1)  Those  which 
arise  from  sacrifices  of  part  of  the  ship  or  part  of  the 
cargo,  purposely  made  in  order  to  save  the  whole  adven- 
ture from  perishing.  (2)  Those  which  arise  out  of  extra- 
ordinary expenses  incurred  for  the  joint  benefit  of  ship 
and  cargo. 

"  Common  justice  dictates  that  where  two  or  more 
parties  are  engaged  in  the  same  sea  risk,  and  one  of  them, 
in  a  moment  of  imminent  peril,  makes  a  sacrifice  to  avoid 
the  impending  danger  or  incurs  extraordinary  expenses  to 
promote  the  general  safety,  the  loss  or  expenses  so  incurred 
shall  be  assessed  upon  all  in  proportion  to  the  share  of 
each  in  the  adventure. 

"Where  expenses  are  incurred  or  sacrifices  made  on 
account  of  the  ship,  freight  and  cargo,  by  the  owner  of 
either,  the  owners  of  the  other  interests  are  bound  to  make 
contribution  in  the  proportion  of  the  value  of  their  several 
interests,  but  in  order  to  constitute  a  basis  for  such  a  claim 
it  must  appear  that  the  expenses  or  sacrifices  were  occa- 
sioned by  an  apparently  imminent  peril;  that  they  were  of 
an  extraordinary  character;  that  they  were  voluntarily 
made  with  a  view  to  the  general  safety;  and  that  they  ac- 
complished or  aided  at  least  in  the  accomjDlishment  of  that 
purpose. 

"  Au.thorities  may  be  found  which  attempt  to  qualify 
this  rule,  and  assert  that  where  the  situation  of  the  ship 
was  such  that  the  whole  adventure  would  certainl}^  and 
unavoidably  have  been  lost  if  the  sacrifice  in  question  had 
not  been  made,  the  party  making  it  cannot  claim  to  be 
compensated  by  the  other  interests,  because  it  is  said  that 
a  thing  cannot  be  regarded  as  having  been  sacrificed  which 
had  already  ceased  to  have  any  value,  but  the  correctness 
of  the  position  cannot  be  admitted  unless  it  appears  that 
the  thing  itself  for  which  contribution  is  claimed  was  so 
situated  that  it  could  not  possibly  have  been  saved,  and 
that  its  sacrifice  did  not  contribute  to  the  safety  of  the 
crew,  ship,  or  cargo.     Sacrifices,  where  there  is  no  peril, 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  "^^^ 

present  no  claim  for  contribution,  but  the  g-rcater  and 
more  imminent  the  peril  the  more  meritorious  the  claim 
for  such  contribution,  if  the  sacrifice  was  voluntary  and 
contributed  to  save  the  associated  interests  from  the  im- 
pending danger  to  which  same  were  exposed. 

"  Such  claims  have    their    foundation  in  equity,  and 
rest  upon  the  doctrine  that  whatever  is  sacrificed  for  the 
common  benefit  of  the  associated  interests  shall  be  made 
good    by  all    the    interests  which    Avere    exposed    to    the 
common  peril  and  which  Avere  saved    from    the  common 
danger  by  the  sacrifice.     Much    is    deferred    in    such    an 
emergency  to  the  judgment  and  decision  of  the  master; 
but  the  authorities,  everywhere,  agree    that    tliree    things 
must  concur  in  order  to  constitute  a  valid  claim  for  general 
average  contribution ;  First,  there  must  be  a  common  danger 
to  which  the  ship,  cargo  and  crew  were  all  exposed,  and 
that  danger  must  be  imminent  and  apparently  inevitable, 
except  by  incurring  a  loss  of  a  portion  of  the  associated 
interest  to  save  the  remainder.     Secondly,  there  must  be 
the  voluntary  sacrifice  of  a  part  for    the    benefit    of    the 
whole,  as  for  example  a  voluntary  jettison  or  casting  away 
of  some  portion  of  the  associated  interests  for  the  purpose 
of  avoiding  the  common  peril,  or  a  voluntary  transfer  of 
the  common  peril  from  the  whole  to  a  particular  portion 
of  those  interests.     Thirdl}'',  the  attempt  so  made  to  avoid 
the  common  peril  to  which  all  those  interests  were  exposed 
must  be  to  some  practical  extent  successful,  for  if  nothing- 
is  saved  there  cannot  be  any  such  contribution  in  any  case. 
"  Equity  requires,  says  Emerigon,  that  in  these  cases 
those  whose  effects  have  been  preserved  b}^  the  loss  of  the 
merchandise  of  others  shall  contribute  to  this  damage,  and 
commercial  policy  as  Avell  as  equity  favours  the  principle 
of  contribution,  as  it  encourages  the  owner,  if  present,  to 
consent  that  his  property,  or  some  portion  of  it,  may  be 
cast  away  or  exposed  to  peculiar  and  special  danger  to 
save  the  associated  interests  and  the  lives  of  those  on  board 
from  impending  destruction;  and  if  not  present,  the  moral 
tendency  of  the  well-known  commercial  usage  is  to  induce 
the  master  to  exercise  an  independent  judgment    in    the 
emergency  for  the  benefit  of  all  concerned." 

The  above  definition,  or  exposition,  it  will  bo  seen,  includes  extra- 
ordinary expenses  incurred  for  the  joint  benefit  of  ship  and  cargo, 
or  with  a  view  to  the  general  safety. 

Consultation  of  the  master  with  the  ofiicers  and  crew  is  not  neces-  Authority  for 

.sacrifice. 

3  a2 


H 


724  APPENDIX  V. 

sary  before  making  the  sacrifice  (oo).     Our  Courts  are  reluctant  to 
question  the  judgment  of  the  master. 

The  following  remarks  of  Clifford,  J.,  in  the  Star  of  Hope,  supra, 
are  of  interest  in  this  connection: 

"  Masters  are  often  compelled,  in  the  performance  of 
their  duties,  to  choose  between  the  probable  consequences 
of  imminent  perils  threatening  the  loss  of  the  ship,  cargo, 
and  all  on  board,  and  a  sacrifice  of  some  portion  of  the 
associated  interests  in  their  custody  and  under  their  control, 
as  the  only  means  of  averting  the  dangers  of  the  impending 
peril  in  their  power  to  employ.  They  must  elect  in  such 
an  emergency,  and  if  they,  in  the  exercise  of  their  best 
skill  and  judgment,  decide  that  it  is  their  duty  to  lighten 
the  ship,  cut  away  the  masts,  or  to  strand  the  vessel,  Courts 
of  justice  are  not  inclined  to  overrule  their  determinations. 

"  Owners  of  vessels  are  under  obligation  to  employ 
masters  of  reasonable  skill  and  judgment  in  the  perform- 
ance of  their  duties,  but  they  do  not  contract  that  they 
shall  possess  such  qualities  in  an  extraordinary  degree,  nor 
that  they  shall  do  in  any  given  emergency  what,  after  the 
event,  others  may  think  would  have  been  best.  From  the 
necessity  of  the  case  the  law  imposes  upon  the  master  the 
duty,  and  clothes  him  with  the  power,  to  judge  and  deter- 
mine, at  the  time,  whether  the  circumstances  of  danger 
in  such  a  case  are  or  are  not  so  great  and  pressing  as  to 
render  a  sacrifice  of  a  portion  of  the  associated  interests 
indispensable  for  the  common  safety  of  the  remainder. 
Standing  upon  the  deck  of  the  vessel,  with  a  full  knowledge 
of  her  strength  and  condition,  and  of  the  state  of  the  ele- 
ments which  threaten  a  common  destruction,  he  can  best 
decide  in  the  emergency  what  the  necessities  of  the  moment 
require  to  save  the  lives  of  those  on  board  and  the  pro- 
perty intrusted  to  his  care,  and  if  he  is  a  competent  master, 
if  an  emergency  actually  existed  calling  for  a  decision 
whether  such  sacrifice  was  required,  and  if  he  appears 
to  have  arrived  at  his  conclusion  with  due  deliberation, 
by  a  fair  exercise  of  his  own  skill  and  judgment,  Avith 
no  unreasonable  timidity,  and  with  an  honest  intent  to  do 
his  duty,  it  must  be  presumed,  in  the  absence  of  proof  to 
the  contrary,  tliat  his  decision  was  wisely  and  properly 
made." 

Sacrifices  made  in  good  faith  for  the  general  benefit  are  made 
good  in  general  average,  even  though  made  under  a  mistaken  idea 

{oo)  Coliimbuin  Ins.  Co.  v.  Ashbi/,  13  Pet.  332. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

as  to  impending  danger.  In  The  Wordsworth  (p),  where  the  fore- 
peak  filled  with  water  during  heavy  weather,  and  it  was  thought  that 
the  steamer  was  holed  below  the  waterline,  the  sluices  were  opened 
and  the  water  allowed  to  run  to  the  engine  room,  doing  damage  to 
the  cargo.  By  this  means  the  water  in  the  forepeak  was  reduced 
and  it  was  found  that  the  leak  Avas  occasioned  by  a  break  in  the  port 
hawsepipe  and  there  had  been  no  necessity  for  opening  the  sluices. 
The  Court  stated  that  the  damage  to  cargo  was  general  average. 

To  give  rise  to  general  average  contribution,  the  sacrifice  must 
be  sanctioned  by  the  master,  or  other  person  in  autliority  connected 
with  the  adventure.  Where  a  ship  on  fire  is  scuttled  by  the  port 
authorities,  acting  on  their  own  initiative,  without  the  sanction, 
express  or  implied,  of  the  master  or  other  commanding  officer  of 
the  ship,  and  against  the  protest  of  such  officer,  as  respects  some 
of  the  measures  taken;  and  where  it  is  shown  that  the  acts  of  the 
port  authorities  were  not  only  for  the  purpose  of  putting  out  the 
fire  on  the  vessel  but  also  to  protect  and  preserve  the  shipping  and 
other  property,  the  damage  done  by  the  port  authorities  is  not 
general  average  (q). 

Where  fire  broke  out  in  a  vessel  alongside  a  wharf,  and  the 
services  of  the  Fire  Department  were  invoked  by  the  officers  of 
the  vessel  and  the  master  directed  the  operations  of  the  firemen, 
the  sacrifices  made  were  held  to  be  general  average  (r). 

In  Ralli  V.  Troop  (rr),  there  was  £^  strong  dissent  from  the  judg- 
ment of  the  Court  by  two  of  the  judges,  and  the  decision  lias  been  the 
subject  of  much  adverse  comment  on  the  part  of  lawyers,  adjusters, 
underwriters  and  others  versed  in  matters  of  general  average,  who 
hold  the  view  that  as  the  doctrine  of  general  average  is  based  on 
the  highest  principles  of  equity,  the  proper  question  by  which  to 
test  a  ffeneral  average  sacrifice  should  be,  not,  Who  authorized  the 
act?  but  Was  the  sacrifice  for  the  benefit  or  safety  of  the  adventure? 
Unless  the  facts  are  fully  understood,  the  Ralli  decision  is  subject 
to  misconception  as  to  its  scope.  In  considering  this  case  the  fol- 
lowing points  should  be  remembered:  the  port  authorities  came  to 
the  vessel  unsolicited;  they  did  not  act  with  the  sanction  of  the 
master,  but,  in  fact,  acted  against  his  protest  in  respect  to  some 
of  the  steps  taken,  and  the  Court  proceeded  upon  llie  assumption 
of  fact  that  the  port  authorities  were  influenced  rather  by  a  desire 


[p]  88  Fed.  313. 

((?)  Ralli  V.  Tfoop,  157  U.  S.  386  ;  Minneapolis,  St.  P.  and  Ji.  S.S.  Co.  v.  Manistee 
Transit  Co.,  156  Fed.  424;  Wamsutta  Mills  v.  Old  Colony  Steamboat  Co.,  137  Mass. 
471. 

(r;   The  Roanoke,  46  Fed.  297  ;  53  Fed.  270  ;  59  Fed.  161. 

()t)  157  U.  S.  386. 


725 


726 


APPENDIX  V. 


Is  successful 
resiilt 
necessary  'r 


to  protect  the  shipping-  and  other  property  of  the  port  than  by  a 
desire  to  effect  the  greatest  possible  saving-  of  the  vessel  and  her 


cargo. 


lu  the  seventeen  years  since  the  decision  in  RalU  v.  Troop,  a 
large  number  of  burning  cases  have  come  to  my  notice,  but  I  have 
known  of  only  two  such  cases  in  which  it  was  necessary  to  deny 
the  claim  for  general  average  on  account  of  the  intervention  of 
port  authorities. 

It  is  interesting  to  note  that  while  the  Ralli  case  was  cited  in 
the  English  Court  in  the  case  of  Papayanni  v.  Grampian  S.S. 
Co.  (s),  Mathew,  J.,  apparently  distinguished  that  case  from  the 
Balli  case  on  the  ground  that  the  master  sanctioned  what  was  done 
by  the  port  authorities,  and  that  it  was  in  the  interest  of  ship  and 


cargo . 


Where  a  tug  and  her  tows  were  in  danger  of  being  driven  on 
a  lee  shore  in  a  storm,  and  the  master  of  the  tug  cut  the  towing 
hawser  and  the  tows  drifted  ashore  and  were  lost,  it  was  held  that, 
although  it  was  the  act  of  the  master  of  the  tug,  the  tug  was  not 
liable  to  contribute  in  general  average  for  the  loss  of  the  tows  (t). 

There  must  be  some  measure  of  success  as  a  result  of  the  sacrifice. 
On  this  Gourlie  (m)  comments  as  follows: 

"  The  sacrifice,  however,  is  considered  successful  if  the 
interests  are  even  temporarily  saved,  although  subse- 
quently overwhelmed  by  another  disaster;  as,  if  a  vessel 
be  thrown  on  her  beam  ends,  and  is  only  righted  by  a 
sacrifice  of  some  of  the  spars  and  rigging,  although 
the  vessel  and  most  of  her  cargo  be  afterwards  lost  by 
stranding  or  another  peril,  contribution  would  be  due  from 
whatever  is  eventuallv  saved." 


As  Lowndes  (x)  adds : 

"  Gourlie,  however,  is  not  satisfied  with  even  this  limi- 
tation of  the  older  rule  requiring-  that  the  sacrifice  must 
be  successful.  He  lays  down  as  a  principle  to  be  inflexibly 
adhered  to,  that  that  equality  which  subsisted  amongst  the 
several  interests  at  the  moment  preceding  the  sacrifice 
shall  be  reinstated  by  the  contribution  under  all  circum- 
stances. It  appears  to  me  that  the  principle  he  contends 
for,  and  Avhich  certainly,  so  far  as  I  have  had  opportunities 


(«)  (1896)  1  Com.  Cas.  448. 

(if)   ne  J.  P.  iJonakhon  (1896),  167  U.  S.  599. 

(«)  Page  8. 

(.r)  Fourth  Edition,  p.  607. 


727 
LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

for  observing,  governs  the  general  practice  of  American 
as  well  as  English  adjusters,  is  precisely  that  set  forth  in 
other  words  in  sect.  6  of  the  first  chapter  of  this  book. 
Gourlie's  republican  idea  of  equality,  as  a  sort  of  natural 
level  which  must  constantly  be  maintained  or  restored,  is 
practically  identical  with  Arnould's  theory,  that  it  must  be 
made  in  result  immaterial  whether  my  property  or  that  of 
another  man,  has  been  taken  to  save  the  whole. 

"  If,  then,  after  a  sacrifice  of  property,  the  remaining 
property  is  totally  lost,  no  matter  whether  by  an  inde- 
pendent accident  or  by  that  Avhich  led  to  the  sacrifice, 
there  can  be  no  contribution,  because  all  are  already 
equal,  each  having  lost  all  he  had  on  board.  But  if  some 
part  is  recovered,  there  must  be  a  contribution,  because 
the  portion  sacrificed  thereby  lost  its  chance  of  the  ulti- 
mate recovery;  but  this  contribution  must  be  so  framed 
as  only  to  put  the  part  sacrificed  on  an  equality  with  the 
remainder:  e.g.,  if  one-tenth  of  the  entire  value  be  saved, 
une-tcnth  of  the  value  of  what  was  sacrificed  must  be 
replaced." 

Tho  foregoing  remains  a  correct  expression  of  the  American  law 
and  practice  of  to-day. 

Where  a  vessel  stranded,  and  a  large  portion  of  her  cargo  was 
jettisoned  for  the  purpose  of  floating  her,  but  without  avail,  and 
she  was  abandoned  by  the  crew  but  later  floated  off  and  was  picked 
up  derelict  and  taken  into  port,  Story,  J.,  said: 

"In  respect  to  the  jettison  of  the  cargo,  it  is  clear 
that  it  constitutes  a  case  of  general  average  to  be  borne 
by  the  ship,  freight  and  cargo  ultimately  saved  "(y). 

Where  the  general  average  act  has  consisted  of  an  absolute  outlay  Expenditure 
of  money,  e.g.,  through  going  into  a  port  of  refuge,  and  the  ship  J^j.^^^^'J^gg^^^' 
is  afterwards  totally  lost  on  her  voyage,  our  law  as  to  whether 
or  not  there  must  be  contribution  is  unsettled.  While  there  is 
dictum  in  an  early  case  (z)  that  under  such  circumstances  contribu- 
tion is  due,  no  case,  so  far  as  the  writer  is  aware,  has  clearly  decided' 
that  it  is  due. 


(»/)   The  Nathaniel  Hooper,  3  Sumner,  o42  ;  Fed.  Gas.  10032,  at  p.  1188. 
(=)  Spafford  v.  Dodye,  14  Mass.  at  p.  72  (1817)  :  Gourlie,  p.  12. 


728 


APPENDIX  V. 


Gourlio  is  in  favour  of  contribution.     He  says: 

"  No  reason  can  be  given  why  such  expenditure  should 
be  borne  by  one  person  rather  than  another,  and  equity 
clearly  requires  their  division,  as  otherwise  the  advancer 
of  monej'  would,  without  comj)ensation,  become  an  under- 
writer upon  the  adventure  for  the  completion  of  the 
voyage." 

In  Hobson  v.  Lord  (a),  however,  there  is  an  intimation  that  only 
.  property  which  has  been  preserved  is  bound  to  contribute  to  extra- 
ordinary expenses. 

It  seems  to  me  that  the  party  making  the  advances  should  be 
under  an  obligation  to  protect  them  by  insurance  until  the  voyage 
is  terminated.  At  the  time  of  the  case  mentioned,  there  was  rarely 
an  opportimity  so  to  protect  such  advances  or  to  apply  to  the  cargo 
interests  foi'  funds,  as  the  means  of  communication  with  vessels 
in  ports  of  distress  were  limited,  and  frequently  vessels  had  subse- 
quently been  lost,  or  had  arrived  at  destination  before  the  owners 
were  aware  of  the  accident  and  the  advances  made.  There  was  then 
good  reason  for  holding  the  cargo  liable  for  contribution  if  the  vessel 
were  lost  before  the  completion  of  the  voyage.  Now,  by  means 
of  the  cable,  owners  are  promptly  advised  of  sach  accidents,  and, 
therefore,  are  in  a  position  to  protect  their  advances  by  insurance 
or  to  communicate  with  the  cargo  interests.  Indeed,  it  is  customary 
for  the  owner  making  the  advances  to  effect  such  insurance,  and, 
therefore,  it  would  seem  that  the  owner  should  now  be  charged 
with  this  duty,  and,  if  he  neglects  it,  in  the  event  of  total  loss 
before  arrival  at  destination  the  OAvners  of  cargo  should  not  be  held 
liable  for  contribution  to  such  expenses.  The  premium  for  such 
insurance  is  charged  to  general  average. 

In  The  Julia  Blake  (b),  the  Court  denied  the  authority  of  the 
master  to  put  burdens  of  doubtful  benefit  on  the  goods,  which  the 
owners  of  the  goods,  if  present,  or,  if  informed  by  cable  of  the 
circumstances,  Avould  not  have  authorized.  A  cargo  owner,  if  com- 
municated with  in  such  circumstances,  Avould  either  approve  of  the 
expenditure,  or  disapprove.  If  he  approved,  presumably  he  Avould 
insure,  or  would  expect  the  owner  to  insure  the  advances;  and  if 
he  disapproved  and  the  master  still  elected  to  make  the  expenditure, 
the  master  Avould  do  so  at  his  own  risk,  and  in  that  event,  pre- 
sumably he  would  insure.  Or,  possibly,  the  master  might  refuse  to 
make  advances  for  account  of  all  concerned,  and  require  the  cargo 


(a)  92  U.  S.  397,  at  pp.  405—409. 
{b)  107  V.  S.  418. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  "^29 

to  provide  its  own  share  of  the  expenditures.     In  such  a  case,  also, 
no  doubt,  the  cargo  owner  would  insure  his  outlays. 

Another  alternative  would  be  for  the  master  to  obtain  advances 
on  bottomry  and  respondentia  security,  when  the  burden  of  insuring 
would  be  upon  the  lender.  Or,  finally,  the  master,  in  certain  contin- 
gencies, might  sell  a  part  of  the  cargo  and  obtain  funds  to  cover 
its  share  of  extraordinary  disbursements. 

If,  in  any  of  the  cases  supposed,  the  ship  and  cargo  should  be 
totally  lost  after  the  extraordinary  expenditures  were  made,  the 
cargo  owner  would  lose  nothing  beyond  the  value  of  the  goods, 
except,  possibly,  the  cost  of  an  insurance  premium.  If  the  shipowner 
or  the  master,  instead  of  adopting  either  of  these  alternative  courses 
should  volunteer  to  make  advances  for  extraordinary  disbursements 
on  account  of  cargo,  and  should  fail  to  insure  them,  upon  what 
equitable  or  legal  right  could  he  justify  a  claim  for  contribution 
from  the  owners  of  the  cargo  in  the  case  of  its  subsequent  total 
loss?  I  can  see  no  ground  for  such  a  claim  in  principle,  and  cer- 
tainly there  is  no  authority  for  it  in  decided  cases.  The  shipowner 
is  not  always  bound  to  act  as  banker  for  the  adventure,  and  if  he 
volunteers  to  do  so  without  communicating  with  the  cargo,  or  ob- 
taining its  authority,  and  fails  to,  protect  himself  by  insurance,  the 
risk  of  subsequent  loss  of  the  advances  should  be  upon  him,  and 
not  upon  the  cargo. 

A  possible  exception  may  exist  in  cases  where  the  master,  in 
good  faith,  and  in  the  exercise  of  good  judgment,  at  a  time  of  peril, 
makes  an  extraordinary  expenditure  for  the  common  benefit  and 
safety  of  the  adventure  without  having  an  opportunity  to  commu- 
nicate with  the  owners  of  ship  or  cargo,  and  both  are  subsequently 
totally  lost.  In  such  a  case  there  is  ground  for  the  contention  that 
contribution  should  be  made  by  the  cargo  owner  to  the  extraordinary 
expenditures,  notwithstanding  the  subsequent  loss  of  ship  and  cargo; 
but  the  matter  is  involved  in  much  doubt,  and  in  the  absence  of 
authority,  no  decided  opinion  is  expressed  with  regard  to  it. 

In  a  case  of  voluntary  stranding,  in  the  United  States  Supreme  Theory  of 
Court,  where  it  was  strenuously  contended  that  it  was  inevitable  "•l^emative. 
that  the  vessel  must  strand  in  some  place,  and  there  should,  there- 
fore, be  no  general  average  allowance  for  the  loss  resulting  from 
voluntary  stranding,  Grier,  J.,  in  rejecting  that  contention,  said: 

"  When  contribution  is  refused,  because  the  thing 
whose  loss  is  anticipated  by  the  master's  act,  is  already  in 
danger  of  destruction,  it  is  to  be  remembered  that  the 
things  saved  were  in  equal  danger  "  (bb). 

[bh]  Barnard  \.  Adam.s,  10  Hoav.  270  (1850). 


730 


APPENDIX  V. 


Catisa 
causans. 


The  City  of 
Para. 


And  this  is  unquestiouably  the  principle  upon  which  our  law  of 
voluntary  stranding-  and  wreck  cut  away  is  largely  founded. 
As  Lowndes  (c)  remarks: 

"  The  law  of  the  United  States  appears  absolutely  to 
reject  the  doctrine  that,  to  give  rise  to  general  average, 
there  must  be  a  choice  between  two  alternative  methods 
of  saving-  the  ship  and  carg-o.  This  is  shown  in  some  of 
the  decisions  already  cited,  on  the  subject  of  voluntary 
stranding-,  and  is  set  forth,  not  ^-ithout  a  certain  whole- 
some scorn,  by  Mr.  Gourlie,  who  concludes  that  'the  only 
alternative  necessary  is  that  of  total  loss.'  " 

There  is  no  difference  between- English  and  American  law  in  this 
regard.  The  statement  of  the  earlier  text  ^\-riters  that  there  can 
be  no  general  average  when  the  accident  from  Avhich  the  sacrifice 
emanated  has  arisen  from  the  ship's  unseaworthiness,  or  from  the 
fault  or  negligence  of  the  master  or  crew,  or  from  the  vice  propre 
of  the  cargo,  is  subject  to  limitation.  The  doctrine  of  general 
average  is  not  dependent  upon  the  cause  of  the  accident  which 
necessitated  the  sacrifice  or  expenditure.  It  is  governed  by  the  facts 
as  they  exist  at  the  time  of  such  sacrifice  or  expenditure,  and  even 
though  the  accident  has  been  the  result  of  unseaworthiness,  negli- 
gence, or  vice  propre  of  the  cargo,  there  may  be  a  general  average; 
but  the  party  responsible  for  such  unseaworthiness,  or  neglig-ence, 
or  for  knowingly  shipping-  cargo  in  an  unsound  condition,  is  not 
entitled  to  contribution  {^dj . 

The  perils  arising-  from  these  causes  may  necessitate  sacrifices 
of  the  cargo  of  some  of  the  shippers,  and  the  shipowner's  liability 
may  be  limited  by  law  to  an  amount  less  than  the  total  damage, 
or  the  shipowner  may  be  exempted  by  contract  from  liabilit}-.  In 
such  cases,  the  owners  of  the  carg-o  would  be  entitled  to  contribution, 
one  from  the  other. 

In  Pacific  Mail  S.S.  Co.  v.  N.  Y.  H.  <&  R.  Mining  Co.  i  e),  the  City 
of  Para,  loaded  with  a  general  carg-o,  stranded  through  negligent 
navigation.  As  it  was  feared  she  would  g-o  to  pieces,  in  order  to 
make  the  vessel  rest  easy,  the  sluices  were  opened  and  she  was 
filled  Avith  water.  She  was  afterwards  floated  by  salvors  and  taken 
to  destination. 

This  case  arose  prior  to  the  passage  of  the  Harter  Act(/),  and 
the  owners  of  the  vessel  were  liable  for  all  damages  arising  from 
neg-ligence,  subject  to  their  right  to  limit  liability  to  the  value  of 


(c)  Fourth  Edition,  p.  609. 

(d)  Schooner  Wm.  J.  Quillan,  168  Fed.  407  ;   175  Fed.  '207  ;   180  Fed.  681. 
{e)  69  Fed.  414  ;  74  Fed.  564. 

(/)  Feb.  13,  1893. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  ^^1 

the  vessel  and  freight.  Proceedings  were  taken  against  the  ship 
by  some  of  the  consignees,  and  her  owners'  liability  was  limited 
to  a  sum  considerably  smaller  than  the  cargo  loss.  This  sum  was 
paid  into  Court  and  distributed  among  such  owners  of  the  cargo 
as  had  taken  proceedings. 

In  the  general  average  statement  the  damage  to  the  cargo  by 
the  flooding  of  the  vessel  w^as  allowed  in  general  average.  The 
consignees  who  had  recovered  in  the  Court  proceedings  were  charged 
with  the  amounts  recovered,  and  the  general  average  Avas  appor- 
tioned on  the  arrived  values  of  the  cargo,  including  the  amounts 
made  good.  As  the  shipowners  had  surrendered  her  value,  the  ship 
Avas  not  brought  in  as  a  contributing  factor.  The  average  state- 
ment was  contested  by  the  owners  of  a  shipment  of  specie  on  the 
following  grounds,  among  others: 

1st:  That  there  could  be  no  general  average,  as  the 
accident  Avliich  gave  rise  to  the  sacrifice  had  been  the 
result  of  negligent  navigation. 

2nd:  That  there  could  be  no  general  average  without 
the  ship  contributing. 

3rd:  That  the  recovery  in  the  Court  proceedings  could 
not  be  disturbed  by  application  of  the  princi])les  of 
general  average. 

The  Circuit  Court  of  Appeals  decided  against  these  contentions, 
and  on  the  first  point  folloAved  the  English  decision  of  Strang, 
Steel  d-  Co.  V.  Scott  (g). 

In  a  more  recent  case,  where  fire  broke  out  through  vice  propre  Vice  propre  of 
of  the  cargo,  it  yva,s  held  tliat  as  the  shippers  had  not  knowingly  ^^^S°- 
shipped  an  improper  cargo  they  were  entitled  to  allowance  in 
general  average  for  the  damage  by  water  used  in  extinguishing 
the  fire  (h).  Even  if  the  shippers  did  have  actual  knowledge  of 
the  condition  of  the  cargo  when  shipped,  other  shippers  -would  be 
entitled  to  allowance  for  any  damage  done  to  their  cargo  in  extin- 
guishing' the  fire,  Avith  the  right  of  recourse  against  the  guilty 
party . 

Oji  February  13,  1893,  Congress  passed  the  statute  known  as  the  Effect  of 
Harter  Act,  Avhicli  })rovided  tliat  on  compliance  Avith  certain  condi-  Harter  Act, 
tions  the  shipoAvner  should  not  be  liable  for  loss  of  or  damage  to 
cargo  resulting  from  faults  or  errors  in  navigation,  &c.     After  this 
Act  became    laAv,  it  Avas  generally  considered    that,  as    its    terms 
exempted  the  shipoAvner  from  direct  liability  for  losses  arising  from 


(v)   H  App.  Gas.  601. 

(//)  Sclioonn-  Wm.  J.  QnUhni.  168  Fed.  407  :   17.'.  Fed.  207;   180  Fed.  681. 


732  APPENDIX  V. 

neglig-ent  navigation,  he  was  entitled  to  recover  in  general  average 
for  the  ship's  sacrifices  which  had  minimised  the  greater  loss  for 
which  he  was  now  relieved  from  liability.  Certain  cargo  under- 
writers, however,  raised  the  issue  that,  as  the  Harter  Act  did  not 
expressly  mention  the  subject  of  general  average,  there  had  been 
no  change  in  the  law  then  existing,  and  this  important  question 
J<}^g  came  up  for  decision  in  the  case  of  The  Irrawaddy  (i).     That  vessel 

Irrawaddy.  had  stranded  through  negligence,  and  was  floated  by  salvors  after 
a  jettison  of  part  of  the  cargo  and  after  various  sacrifices  by  the 
vessel.  Some  of  the  cargo  underwriters  settled  their  liability  on 
the  basis  of  all  of  the  sacrifices  and  expenditures  being  general 
average;  others  admitted  their  liability  to  contribute  in  general 
average  for  all  sacrifices  and  expenditures  for  which  there  had  been 
a  lien  on  the  cargo  in  favour  of  third  parties,  and  contested  their 
liability  for  contribution  to  the  shipowner's  sacrifices,  the  leason 
for  this  distinction  being  that  when  the  shipowner  settled  the  claims 
for  salvage,  jettisoned  cargo  and  other  expenses  for  whicli  third 
parties  had  a  lien,  he  did  so  as  the  agent  for  all  interests,  and  if 
he  had  not  settled  them  each  owner  of  cargo  would  have  been 
directly  liable  to  the  parties  holding  liens,  and  by  virtue  of  the 
Harter  Act  the  owners  of  cargo  would  have  been  prevented  from 
proceeding  against  the  shipowner  to  recover  the  sums  paid  in  satis- 
faction of  such  liens.  The  legal  contest,  therefore,  was  solely  on 
the  question  of  the  right  of  the  shipowner  to  recover  for  his  sacri- 
fices. The  District  Court  upheld  the  owner's  right  to  contribution. 
The  case  then  went  direct  to  the  Supreme  Court  of  the  United 
States,  which  reversed  the  District  Court,  and  held  that  the  Harter 
Act  had  not  affected  the  general  average  liabilities  which  existed 
prior  to  the  adoption  of  that  Act,  and  decided  against  the  shipowner. 
The  StrathdoH.  The  Irrawaddy  case  was  followed  by  The  Strathdon  (k).  In  this 
case,  fire  broke  out  in  a  cargo  of  sugar,  and  in  order  to  extinguish 
it,  the  steamer  was  partly  filled  with  water.  In  the  average  state- 
ment all  of  the  sacrifices  were  treated  as  general  average.  The 
owners  of  the  cargo  contended  that  the  fire  was  the  result  of  negli- 
gence, and  that  the  ship's  sacrifices  should  not  be  allowed,  but  that 
the  ship  must  contribute  to  the  sacrifices  of  the  cargo.  The  Court 
held,  however,  that  as  the  cargo  had  claimed  contribution  in  general 
average,  the  vessel  was  entitled  to  offset  against  the  cargo  claims 
to  the  extent  of  the  cargo's  proportion  of  her  own  expenditure. 

This    led  to  a  most  unsatisfactory  state  of    affairs.      It  put  the 
application  of  the  doctrine  of  general  average  on  a  basis  of  self 


(0  82  Fed.  472  ;  88  Fed.  987  :   171  U.  S.  187. 
(k)  94  Fed.  20C  ;   101  Fed.  GOO. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 


733 


interest,  as,  if  the  shipowner's  contribution  to  the  cargo's  sacrifices 
proved,  to  be  less  than  the  cargo's  contribution  to  the  ship's  sacri- 
fices, the  particular  cargo  owner  interested  refrained  from  claiming 
in  general  average — a  situation  quite  opposed  to  the  principles  of 
equity  upon  which  general  average  is  founded.  In  cases  of  vessels 
with  general  cargoes,  wliere  the  sacrifices  had  arisen  from  negligent 
navigation,  and  the  cargo  of  some  shippers  had  been  sacrificed  and 
others  not,  the  complications  tliat  ensued  were  practically  inter- 
minable . 

With  a  view  of  meeting  this  situation  a  clause  Avas  inserted  in  Negligence 
many  bills  of  lading  (I).     The  legality  of  this  clause  was  questioned  §^eneral 
in  the  United  States  District  Court  in  the  case  of  The  Yucatan  (m),  clause, 
which  held  that  in  effect  it  was  a  negligence  clause,  and  that  as    The  Yucatan. 
regards  common  carriers  such  clauses  were  invalid  because  in  con- 
flict with  our  declared  public  policy  (w). 

This  case  was  followed  by  that  of  The  Jason  (o),  which,  loaded  Thejaso». 
with  a  general  cargo,  stranded  through  negligence  and  was  floated 
by  salvors  after  a  jettison  of  some  of  the  cargo  and  after  sacrifices 
on  the  j)art  of  the  vessel.  The  bill  of  lading  contained  a  clause 
identical  with  that  in  the  Yucatan  case.  All  of  the  sacrifices  and 
expenditures  were  treated  as  general  average.  The  shipowners  pro- 
ceeded against  the  cargo  for  the  balance  due  under  the  average 
statement,  and  the  cargo  proceeded  against  the  ship  for  contribution 
to  the  jettison  alone.  The  District  Court,  following  the  Irrawaddy 
judgment,  decided  against  the  shipowners'  claim,  and,  following  the 
Strathdon  judgment,  decided  against  the  cargo's  claim.  On  account 
of  the  decision  in  the  Yucatan  case  the  validity  of  the  bill  of  lading 
clause  was  not  argued,  in  the  District  Court.  On  the  appeal  being 
heard  in  the  Circuit  Court  of  Appeals  the  validity  of  the  bill  of 

(?)  This  clause  reads  as  follows  :  "If  the  owner  of  the  ship  shall  have  exercised 
due  diligence  to  make  said  ship  in  all  respects  seaworthy  and  properly  manned, 
equipped  and  supplied,  it  is  hereby  agreed  that  in  case  of  danger,  damage  or 
disaster  resulting  from  fault  or  negligence  of  the  pilot,  master  or  crew  in  the  navi- 
gation or  management  of  the  ship,  or  from  latent  or  other  defects,  or  unseaworthi- 
ness of  the  ship,  whether  existing  at  time  of  shipment,  or  at  the  beginning  of  the 
voyage,  but  not  discoverable  by  due  diligence,  the  consignees  or  owners  of  the 
cargo  shall  not  be  exempted  from  liability  for  contribution  in  general  average  or  for 
any  special  charges  incurred,  but,  with  the  shipowner,  shall  contribute  in  general 
average,  and  shall  pay  such  special  charges  as  if  such  danger,  damage  or  disaster 
had  not  resulted  from  such  fault,  negligence,  latent  or  other  defects  or  unsea- 
worthiness." 

(?«)    Amonia  CIoclc  Co.  v.  N.  Y.  and  Cuba  Mail  S.S.  Co.,  139  Fed.  894  {T/,c  Yacalan). 

(m)  The  Courts  of  New  York  and  of  some  other  states  have  decided  that  negli- 
gence clauses  in  bills  of  lading  of  common  carriers  are  valid.  In  such  cases  in 
those  Courts  there  is  no  appeal  from  the  State  Courts  to  the  Federal  Courts. 

(o)   162  Fed.  56;   178  Fed.  411. 


734 


APPENDIX  V. 


lading  clause  was  argued  iii  that  Court  for  the  first  time,  and  the 
cargo  interests  made  a  determined  stand  for  a  revision  of  the  law- 
laid  down  ill  the  Strathclon  case.  The  Court  held  the  bill  of  lading 
clause  invalid,  and  modified  the  Strathdon  doctrine  by  holding  that 
by  virtue  of  the  Harter  Act,  the  ship  was  exempt  from  all  claims 
by  cargo,  direct  or  indirect  (including  general  average),  resulting 
from  negligent  stranding,  and,  while  the  ship  was  not  liable  to  con- 
tribute, that  did  not  debar  the  owners  of  jettisoned  cargo  from  ob- 
taining contribution  from  the  other  interests. 

This  decision  was  received  Avith  much  concern  in  underwriting 
and  average  adjusting  circles.  It  appeared  to  be  at  variance  with 
other  decisions,  especially  those  holding  that  the  United  States 
statute  exempting  shipowners  from  liability  for  losses  by  fire  did 
not  exempt  the  ship  from  contribution  to  the  cargo  for  sacrifices 
of  cargo  necessitated  by  fire(p).  The  logical  result  of  The  Jason 
decision  is  that  if  two  ships  strand,  one  through  negligence  and 
the  other  not,  and  both  jettison  cargo,  the  shipowner  whose  crew 
is  negligent  will  now  fare  better  than  the  shipowner  whose  navigators 
are  free  from  fault.  As  regards  the  cargo  interests,  it  would  have 
been  more  advantageous  if  The  Irrcnvadcly  had  been  decided  in  favour 
of  the  shipowner's  contention,  or  if  the  validity  of  the  bill  of  lading 
clause  had  been  iipheld. 

A  petition  to  the  Circuit  Court  of  Appeals  for  a  rehearing  Avas 
granted,  and  that  Court  certified  to  the  United  States  Supreme  Court 
for  its  opinion  the  three  following  questions: 

1.  Whether  the  general  average  agreement,  above 
quoted  from  the  bills  of  lading,  is  valid  and  entitled  the 
shipowner  to  collect  a  general  average  contribution  from 
the  cargo  owners  under  the  circumstances  above  stated  in 
respect  to  sacrifices  made  and  extraordinary  expenses  in- 
curred by  it  subsequent  to  the  stranding  for  the  common 
benefit  and  safety  of  the  ship,  cargo  and  freight. 

2.  Whether,  in  vieAv  of  the  provisions  of  the  third 
section  of  the  Harter  Act,  the  cargo  owners,  under  the 
circiimstances  above  stated,  liaA^e  a  right  to  contribution 
from  the  shipowner  for  sacrifices  of  cargo  made  subsequent 
to  the  stranding  for  the  common  benefit  and  safety  of  ship, 
cargo  and  freight. 

3.  Whether  the  cargo  owners,  under  the  circumstances 
above  stated,  can  recover  contribution  from  the  shipowner 
in  respect  of  general  average  sacrifices  of  cargo  Avithout 


(jo)   The  Roanoke,  46  Fed.  297;  53  Fed.  270;  59  Fed.  161  ;   The  Rapid  Transit, 
52  Fed.  320  ;   The  Santa  Ana,  154  Fed.  800. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

contributing  to  the  general  average  sacrifices  and  expendi- 
tures of  tlie  shipowner  made  for  the  same  purpose. 

It  is  expected  that  the  Supreme  Court  will  hear  the  case  in  the 
near  future. 

It  Avill  be  seen  that  the  present  state  of  the  law  is  very  unsatis- 
factory, and  is  decidedly  opposed  to  the  principles  of  general  average 
as  recognized  and  applied  b}^  all  maritime  nations.  In  England 
and  other  leading  maritime  nations,  the  shipowner  can  protect  him- 
self by  contract.  The  position  of  the  American  adjuster  in  applying 
correct  principles  of  general  average  becomes  an  vmenviable  one, 
as  he  is  met  with  extraordinary  difBculties  in  the  preparation  of 
general  average  statementis,  which  are  already  greatly  complicated. 
The  questions  involved  are  of  very  great  importance  to  all  engaged  in 
maritime  commerce,  since  a  large  ipercentage  of  general  average  state- 
ments emanate  from  cases  of  stranding  or  collision,  and  many  of  such 
accidents  are  held  to  be  due  to  fault.  As  a  result,  interminable 
disputes  over  facts,  and  the  difficulty  of  applying  principles  in  the 
present  condition  of  the  law,  interfere  Avith  the  smooth  running  of 
commercial  transactions;  a  fair  and  -workable  rule  is  therefore  much 
to  be  desired. 

As  before  explained,  in  The  Irrawaclchj  the  cargo  admitted  its 
liability  for  salvage  and  other  expenses  Avhich  gave  a  lien  on  the 
cargo  to  a  third  party.  After  that  decision,  to  expedite  the  com- 
pletion of  the  voyage,  shipowners  generally  advanced  funds  to  dis- 
charge such  liens,  feeling  secure  in  their  right  of  recoupment  from 
the  cargo.  Under  the  Jason  decision,  such  procedure  on  the  part  of 
the  shipowner  Avould  no  longer  be  safe,  unless,  before  making  the 
advances,  he  had  an  absolute  undertaking  of  reimbursement  from 
the  cargo  interests.  Ho  has  the  right  to  let  the  ship  wait  in  the 
port  of  distress  until  each  cargo  interest  has  settled  the  direct  liens 
against  it — a  course  which,  if  pursued  in  these  days  of  large  vessels 
carrying  many  shipments  of  cargo,  would  cause  endless  delays  and 
increase  of  expense,  to  the  disadvantage  of  American  commerce. 

Another  feature  entitled  to  consideration  is  the  effect  that  the 
denial  of  contribution  to  the  ship's  sacrifices  may  have  on  the  mind 
of  the  master  when  a  sacrifice  is  necessary.  Presumably,  these 
sacrifices  were  made  in  order  to  avoid  the  greater  expenses  of 
salvage  or  jettison  of  the  cargo.  As  the  shipowner  would  not  be 
directly  liable  for  this  greater  loss,  is  it  not  fair  to  suppose  that 
the  master's  knowledge  that  a  sacrifice  of  the  ship's  material  would 
involve  no  contribution  from  the  cargo  may  affect  his  better  judg- 
ment and  cause  him  to  employ  salvors,  or  jettison  cargo,  being  aware 
that  his  owner  would  profit  thereby?  It  seems  desirable,  in  the  inte- 
rest of  commerce,  that  the  master  should  be  encouraged  to  make. 


735 


736 


APPENDIX  V. 


When  the 
result  of 
negligence 
of  compul- 
sory pilot. 


Effect  of 
negligence 
when  vessel 
not  a  common 
carrier. 


at  the  right  time,  the  sacrifice  best  for  all  the  interests  concerned, 
and  should  not  be  trammeled  by  considerations  of  benefit  to  a  par- 
ticular interest. 

As  a  learned  judge  (Clifford,  J.)  in  referring  to  general  average, 
said: 

"  The  moral  tendency  of  the  "vvell-known  commercial 
usage  is  to  induce  the  master  to  exercise  an  independent 
judgment  in  the  emergency  for  the  benefit  of  all  con- 
cerned "((/,)• 

Much  experience  with  these  controversies  convinces  me  that  under- 
writers, who  are  really  the  parties  in  interest,  would  not  in  the 
long  run  suffer  greatly  if  the  bill  of  lading  clause  were  upheld. 
As  a  rule,  the  amount  involved  in  the  cargo's  contribution  to  the 
ship's  sacrifices  is  not  serious.  Disputes  take  up  a  great  deal  of 
time  and  prevent  the  settlement  of  important  cases,  which,  in  the 
interest  of  commerce,  is  to  be  deprecated.  At  times,  an  underwriter 
may  be  interested  as  an  insurer  of  tlie  ship,  and  it  is  then  to  his 
interest  to  obtain  contribution  from  the  cargo;  and  vice  versa. 

The  United  States  Supreme  Court  has  decided  that  at  common 
law  the  owner  of  a  vessel  has  no  liability  for  damages  resulting 
from  the  negligence  of  a  pilot  compulsorily  employed  (r) .  As  in 
these  circumstances,  the  fault  of  the  pilot  is  not  the  fault  of  the 
shipo\\Tier,  a  cargo  owner  is  liable  for  general  average  arising 
through  such  negligence,  when  the  proceedings  are  at  common  law. 

When  the  owner  of  the  cargo  has  contracted  for  the  entire  capacity 
of  the  ship,  it  has  been  held  in  the  United  States  Courts  that  the 
owner  of  the  vessel  is  not  a  common  carrier,  but  a  private  carrier 
for  hire,  and  that  negligence  clauses  in  the  contract  of  affreight- 
ment are  valid  (s) . 

While  the  question  of  tlie  liability  for  general  average  in  these 
circTimstances  has  not  as  yet  come  before  our  Courts,  it  would  seem 
that  in  the  present  state  of  our  law  a  negligence  general  average 
clause,  such  as  that  in  the  cases  of  The  Yucatan  and  The  Jason  (t) 
would  bo  upheld,  and  even  where  the  contract  only  contained  the 


{q)  Star  of  Hope,  9  Wall.  203,  supra,  p.  721  ;  and  see  Johnson  v.  Chapman,  19  C.  B. 
N.  S.  563,  at  p.  582;  35  L.  J.  C.  P.  23,  at  p.  28,  where  Willes,  J.,  said:  "It 
would  defeat  the  main  utility  of  general  average  if  at  a  moment  of  emergency 
the  captain's  mind  were  to  hesitate  as  to  saving  the  adventure  through  fear  of 
casting  a  burden  on  his  owners." 

{)■)  Homer  Ramsdell  Transportation  Co.  v.  Za  Compagnie  Generals  Transatlantique, 
182  U.  S.  406. 

(»•)   The  Fri,  154  Fed.  333  ;   The  Royal  Sceptre,  187  Fed.  224. 

(<)  139  Fed.  894  ;   178  Fed.  119. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  737 

ordinary  negligence  clause  our    Courts  would    follow  the    English 
decisions  and  the  cargo  would  be  liable  for  general  average. 

In  the  United  States  the  vessel  must  be  seaworthy  when  she  sails  Bill  of  lading 
on  the  voyage,  and  at  each  subsequent  stage  of  it.     An  owner,  by  unsTaw^rthi^- 
proper  provision  in  the  contract  of  affreightment,  may  be  exempted  ness  or  latent 
from  liability  for  loss  resulting  from  unseaworthiness  or  latent  de-  ""^'^*- 
feet  existing  at  the  time  of  sailing,  provided  he  has  ased  due  dili- 
gence to  make  the  vessel  seaworthy  (ii). 

It  is,  therefore,  clear  that,  so  far  as  concerns  unseaworthiness, 
the  bill  of  lading  clause  in  controversy  in  The  Yucatan  and  The 
Jason  is  valid;  and  even  where  the  contract  only  contains  the  ex- 
emption from  losses  resulting  from  unseaworthiness  existing  at  the 
time  of  sailing,  our  Courts  would  be  likely  to  follow  the  English 
decisions  in  cases  arising  from  negligence,  and  would  uphold  the 
claim  for  general  average. 

All  the  necessary  consequences  of  a  sacrifice  must  be  regarded  Rule  as  to 
as  the  sacrifice  itself  (cc).  consequences. 

All  the  immediate  and  direct  consequences  of  a  sacrifice,  although 
these  consequences  were  neitluer  intended  nor  beneficial,  are  taken 
as  entering  into  and  forming  a  part  of  the  sacrifice  (y). 

Gourlie  says  (z) : 

"  It  may  suflSce  to  say,  however,  that  not  only  all  the 
necessary  but  many  of  the  unnecessary  consequences  of  the 
act  may  be  regarded  as  the  act  itself.  In  regard  to  sacri- 
fices, not  only  the  known,  but  the  conjectural,  and  in  some 
cases  the  accidental,  results  of  the  original  sacrifice  are 
considered  to  follow  it  as  a  logical  consequence  or  exten- 
sion of  the  original  act." 

Examples  of  this,  recognized  as  general  average,  are  damage  done 
by  water  going  down  hatches  opened  to  effect  a  jettison;  damage 
to  cargo  lightered  in  order  to  float  a  stranded  vessel;  the  carrying 
away  of  another  mast  by  one  which  had  been  cut  away. 

In  the  case  of  Norwich  &  N.  Y.  Trans.  Co.  v.  Ins.  Co.  of  N.  A.  (a), 
the  steamboat  City  of  Worcester  struck  a  rock  and  sprang  a  serious 
leak.  The  master  beached  her  upon  what  he  supposed  was  hard  sand, 
but  it  proved  to  be  a  soft  bottom.  Sinking  deeper  in  the  grip  of 
the  mud,  the  vessel  did  not  rise  with  the  tide,  and  the  water  went 


[ti)   The  Caledonia,  157  U.  S.  124. 

{x)  Columbian  Lis.  Co.  \.Ashhy,  13  Pet.  331  (1839). 

(y)  Parsons  on  Maritime  Law,  p.  30t.     See  The  Wordsworth,  88  Fed.  313. 

(s)  P.  13. 

(a)  118  Fed.  307  ;   129  Fed.  1006  ;   194  U.  S.  637. 

L.  3  B 


738 


APPENDIX  V. 


The  SomerhUl. 


The  Victoria, 
1907. 


Where  vessel 
in  ballast,  or 


throug'li  the  gangways  of  the  main  deck,  where  the  cargo  was  stowed 
(as  is  customary  Avith  vessels  of  that  class),  and  much  damage  to 
cargo  resulted.  The  immediate  cause  of  the  damage  was  the  mud  in 
which  the  vessel  sank,  which  was  neither  knoAvn  to  nor  contemplated 
by  the  master;  but,  as  the  beaching  was  a  justifiable  general  average 
act,  the  Court  held  that  the  cargo  damage  was  general  average. 

In  another  case,  a  vessel  was  cut  through  by  the  ice,  and  to 
prevent  sinking  was  beached.  After  the  stranding  the  cargo  was 
badly  damaged  by  large  quantities  of  water  which  entered  the  ship 
through  the  holes  cut  by  the  ice.  The  Court  held  that  the  damage 
to  the  cargo  was  not  general  average,  having  been  caused  by  a 
peril  of  the  sea  (h). 

Where  a  steamer's  shaft  was  fractured  at  sea,  and  in  order  to 
save  towage  was  temporarily  repaired  by  inserting  bolts  across  the 
fracture,  and  later  the  bolts  carried  away  and  extensive  damage 
was  done  to  the  machinery,  it  was  held  that,  as  the  master  expected 
to  reach  port  with  the  repaired  shaft  the  further  damage  was  not 
general  average  (c). 

Some  further  instances  of  the  rule  in  practice,  which  have  not 
gone  to  litigation,  may  be  of  interest.  The  SomerhiU,  in  leaving 
port,  stranded  in  an  exposed  position  in  the  narrow  entrance  to  the 
port,  her  fore  part  only  being  aground.  The  master  made  hawsers 
fast  to  trees  on  an  island  in  the  centre  of  the  entrance,  and,  fearing 
that  if  the  vessel  floated  she  might  run  over  on  the  rocks  at  the 
opposite  side  before  her  headway  could  be  checked,  he  made  prepara- 
tions for  dropping  the  anchors.  The  hawsers  were  hove  on  and 
the  engines  worked  astern,  and  when  the  vessel  floated,  to  check 
her  stern  way,  the  engines  were  put  ahead  and  the  anchors  Avere 
dropped,  but  did  not  hold  her,  and  she  ran  over  on  the  rocks  on  the 
other  side  and  was  badly  damaged.  This  damage  was  allowed  in 
general  average  as  a  consequence  of  the  act  of  floating  her. 

The  steamer  Victoria  was  moored  in  an  open  harbour,  when  a  storm 
arose  and  she  was  in  danger  of  drifting  on  the  rocks;  the  master, 
in  order  to  prevent  destruction,  slipped  the  anchors,  and  cast  off 
the  moorings  and  put  the  engines  full  speed  ahead,  for  the  purpose 
of  running  to  sea,  but  before  the  vessel  gained  headway  she  struck 
on  the  rocks.  The  damag-e  occasioned  thereby  was  treated  as  the 
consequence  of  the  general  average  act  of  running  to  sea.  Several 
other  similar  cases  have  been  dealt  with  in  the  same  manner. 

General  average  is  payable  where  there  is  only  a  single  interest 


(*)  Fowler  v.  Rathbones,  12  Wall.  102. 

(c)    Van  Den  Toorn  v.  Leeminc/,  70  Fed.  251  ;  79  Fed.  107. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  7o!» 

at  stake,  as  where  the  vessel  is  in  ballast  ((Z),  and  in  the  case  of  a  ^'essel  and 

cargo  same 
yacht  (e).  ownership. 

We  may  conclude  that  there  is  little  difference  in  regard  to  general  Conclusion, 
principles  between  the  American,  and  English  law  of  general  averag-e. 
In  recent  years  there  have  been  some  decisions  of  our  Courts  wJiich 
show  a  tendency  towards  the  "  physical  safety  "  theory,  as  being 
the  true  basis  of  general  average,  and  others  which  favour  tlie  "  end 
of  the  adventure,"  or  "mutual  benefit"  theory. 

The  more  notable  among  the  former  are  Earnmoor  S.S.  Co.  v. 
New  Zealand  Ins.  Co.  (/),  which  involves  the  question  of  substituted 
expenses;  Bowring  v.  Thebaud(g),  Avliere  a  vessel  was  pierced  by 
an  unknown  obstruction  while  loading  cargo  at  a  dock  and  required 
temporary  repairs,  and  it  was  held  that  there  was  no  case  for  general 
average  because  there  was  no  peril  to  ship  or  cargo,  and  because 
of  the  shipowner's  implied  warranty  of  seaworthiness  at  the  time 
of  sailing;  and  L' Amerique  (h) ,  where  the  vessel  stranded  near 
destination,  salvors  discharged  the  cargo,  which  was  delivered  to 
consignees,  and  ten  weeks  later  the  vessel  was  floated:  it  was  held 
that  the  salvors'  expenses,  after  discharge  of  the  cargo,  were  charge- 
able to  the  ship  alone. 

Several  important  cases  have  supported  the  "mutual  benefit,"  or 
"end  of  the  adventure"  theory,  where  sacrifices  or  expenses  were 
a  continuation  of  a  series  of  measures  taken  for  the  common  benefit 
before  any  separation  of  interests  whatever,  and  where  the  continua- 
tion of  the  voyage  was  in  contemplation,  although  at  the  time  when 
some  of  the  measures  were  taken  the  cargo  was  temporarily  in  a 
place  of  safety. 

In  a  case  in  the  Supreme  Court  (i),  the  Court  said: 

"  Where  the  whole  adventure  is  saved  by  tlic  master, 
as  agent  of  all  concerned,  the  consignments  of  cargo  first 
unloaded  and  stored  in  safety  are  not  relieved  from  contri- 
buting towards  the  expenses  of  saving  the  residue,  nor  is 
the  cargo  in  that  state  of  the  case  relieved  from  contribut- 
ing to  the  expense  of  saving  the  ship  provided  the  ship  and 
cargo  were  exposed  to  a  common  peril,  and  the  whole  ad- 
venture was  saved  by  the  master  in  his  capacity  as  agent 
of  the  whole  of  the  interests  and  by  one  continuous  series 
of  measures." 

(d)  Fatter  t.  Oceuu  Ins.  Co.,  3  Sumner,  27 ;  Dollar  v.  La  Fonciere,  162  Fed.  563, 

{e)  Risley  v.  Ins.   Co.  of  North  America,  1S9  Fed.  529. 

(/)  73  Fed.  807. 

{g)  42  Fed.  794  ;  56  Fed.  520. 

(A)  35  Fed.  S35. 

(t)  McAndretvs  v.  Thatcher,  3  Wall.  347. 

3  li  2 


740 


APPENDIX  V. 


A  vessel  on  fire  put  into  a  port  of  refuge,  part  of  the  cargo  was 
hurriedly  discharged  into  lighters,  and  the  vessel  was  then  scuttled; 
she  was  subsequently  raised  and  proceeded  with  the  cargo  remaining 
in  her  to  destination,  the  cargo  which  had  been  discharged  into 
lighters  was  forwarded  to  destination  in  other  vessels  by  the  carrier; 
it  was  held  that  the  cargo  Avhich  was  in  safety  on  lighters  must  con- 
tribute to  the  losses  and  expenses  resulting  from  the  scuttling.  In 
the  judgment  of  tlie  Circuit  Court  of  Appeals  the  difference  between  j 
English  and  American  law  is  pointed  out  (k) . 

In  another  case,  The  Josei:)h  Farwell  (I),  the  Court  said: 

"  The  cargo  was  liable  to  contribute  for  any  general 
average  or  expenses  incurred  as  long  as  it  was  'at  risk.' 
Physical  destruction  or  direct  physical  injury  to  the  cargo 
was  not  the  only  risk  to  which  it  was  exposed.  Its  value 
depended,  at  least  is  supposed  to  have  depended,  in  some 
degree,  upon  the  successful  prosecution  of  the  voyage. 
Until  that  was  broken  up,  the  cargo,  although  it  was  sepa- 
rated from  the  ship,  and  put  in  a  place  of  present  safety, 
was  not  so  completely  separated  from  the  ship  and  from 
the  whole  adventure  as  to  leave  no  community  of  interest 
remaining.  It  was  not  entirely  disconnected  with  the  enter- 
prise, and  it  must  be  regarded  as  still  'at  risk,'  and  liable 
to  contribute,  if  it  was  still  under  the  control  of  the  master, 
and  liable  to  be  taken  again  on  board  for  the  purpose  of 
being  carried  to  its  destined  port." 


Jettison  of 
ship's  stores. 


Anchors  and 
chains. 


Sacrifices  of  Ship. 

Jettison  of  ship's  stores,  hawsers,  chains,  water  casks,  &c.,  is  to 
be  contributed  for  in  general  average  provided  the  circumstances 
warrant  the  sacrifice,  and,  if  they  are  jettisoned  from  the  deck, 
provided  they  Avere  properly  stowed  on  deck  (7)1) .  Such  sacrifices, 
however,  demand  close  scrutiny  (w). 

The  loss  of  anchors  or  cables  abandoned  for  the  common  benefit 
is  admitted  as  general  average,  but  if  the  anchor  was  fouled  on 
the  bottom  so  that  it  could  not  possibly  have  been  saved,  the  slipping 


{k)  Reliance  Marine  Ins.  Co.  v.  N.  Y.  and  Cuba  Mail  S.S.  Co.,  70  Fed.  262  ;  77 
Fed.  317  ;  165  U.  S.  720.  See  also,  Nelson  v.  Belmont,  21  N.  Y.  36  ;  Pacife  Mail 
S.S.  Co.  V.  The  K.  Y.  H.  #  R.  Mining  Co.,  74  Fed.  564. 

(/)  31  Fed.  844.  ^-^ 

(m)  Gourlie,  p.  92. 

(«)   The  Santa  Anna  Maria,  49  Fed.  878. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 


741 


of  it  is  not  considered  a  sacrifice.  If,  owing  to  a,  peril  threatening 
the  adventure,  the  ship  is  anchored  in  an  unsafe  place  and  the  chain 
is  slipped  to  get  her  clear,  it  is  general  average  (o). 

If,  to  avoid  an  impending  peril,  such  as  a  collision  or  grounding,  Anchor  let 
an  anchor  is  suddenly  let  go,  Avhile  the  vessel  is  under  headway,   ^",^3^^70011- 
or  in  the  emergency  the  usual  preparations  had  not  been  made  and  ditiona. 
the  anchor  is  lost  tliereby,  it  is  treated  as  a  sacrifice. 

Damage  to  anchors  and  chains  used  in  the  efforts  to  float  a  stranded  In  floating 
vessel  is  allowable  (oo).  ve^ssel.^ 

Damage  by  carrying  a  press  of  sail  is  not  allowed  Cp).  Presa  of  sail. 

Cutting  away  of  masts,  spars  and  sails  to  righten  a  vessel  when  Cutting  away 

on  her  beam  ends,  or  to  ease  her  Avhen  ashore,  or  otherwise  to  avert  "^asts,  spars, 

&c. 
some  imminent  danger,  and  all  the  damage  naturally  resulting  from 

the  fall  of  the  spars,  are  the  subject  of  general  average  (q). 

Coal  and  engine  stores  consumed  from  the  time  of  bearing  up  Coal  and 
for  a  port  of  distress  to  the  time  of  resuming  the  voyage  are  always  ^^^^  ®**^.^® 
treated  as  general  average,  but  not  in  regaining  the  position  from  &o. 
which  the  ship  deviated  (r) . 

Damage  caused  by  voluntary  stranding  is  general  average  whether  Voluntary 
the  vessel  is  afterwards  saved  or  is  totally  lost  by  the  stranding,  even  °' 

where  the  vessel  must  inevitably  strand,  but  is  run  ashore  in  a  diffe- 
rent place.  It  is  a  sufficient  ground  for  allowing  contribution  ]that 
the  damage  sustained  by  the  voluntary  act  is  different  in  its  character 
or  extent  (rr) . 

Lowndes,  in  the  4th  edition,  pp.  126 — 135,  has  carefully  revieAved 
the  leading  American  decisions;  since  that  edition  was  issued,  two 
cases  have  come  before  the  American  Courts.  In  one  of  these, 
with  iwdiich  I  have  already  dealt  (s),  the  principle  of  the  earlier 
cases  was  reaffirmed  in  the  broadest  possible  terms. 

In  the  other  case,  the  right  to  contribution  Avas  denied,  on  the 
express  ground  that  the  testimony  showed  that  soon  after  the  anchor 
was  slipped  the  vessel  stranded  in  substantially  the  same  place  and 
under  the  same  conditions  as  would  have  happened  in  any  event, 
and  with  the  same  result  to  vessel  and  cargo;    and  on   the   further 


(o)  Gourlie,  195,  196. 

{oo)  Roberts  v.  The  Ocean  Star,  Fed.  Cas.  11908. 

[p)  2  Phillips,  Ins.  1296  ;  2  Parsons,  Ins.  302  ;  Gourlie,  203. 

{q)  Rogers  X.  Mechanics'  Ins.  Co.,  1  Story,  604,  and  cases  cited  in  Gourlie,  p.  174. 

(r)  Gourlie,  p.  243. 

(»•)•)  Gaze  V.  ReUhj,  3  Wash.  Cir.  Ct.  Rep.  298  ;  Fed.  Cas.  2538  ;  Sims  v.  Gurney, 
4  Binney's  Penn.  Rep.  513  ;  Gray  v.  Wain,  2  Serg.  &  Rawle,  229  ;  Columbian  Ins. 
Co.  V.  Askby,  13  Pet.  343  (U.  S.  Sup.  Ct.)  ;  Barnard  v.  Adams,  10  How.  270  (U.  S. 
Sup.  Ct.);  Star  of  Hope,  9  Wall.  203  (U.  S.  Sup.  Ct.) ;  Sturycss  v.  Cary,  2  Curt.  59  ; 
Fed.  Cas.  13572  ;  Rea  v.  Cutler,  1  Spr.  135;  Fed.  Ca.s.  11599. 

(*)  Norwich  andX.  Y.  Trans.  Co.  v.  Ins.  Co.  of  N.  A.  {supra,  p.  737). 


742 


APPENDIX  V. 


Temporary 
repairs. 


Damage  done 
in  extin- 
guishing fire, 
&c. 

In  salvage 
operations. 

Coal  and 
engine  stores 
used  up  and 
damage  done 
in  floating 
stranded 
vessel. 


State  of 
wreck, 
wreck  cut 
away. 


ground  that  the  only  object  in  stranding-  the  vessel  was  to  save 
the  lives  of  the  crew(f). 

The  la■\^•  of  the  United  States  differs  in  this  respect  from  that 
of  England.  Reasonable  temporary  repairs  of  damage  arising  from 
excepted  perils,  made  at  some  intermediate  port,  where  permanent ' 
repairs  cannot  be  made,  if  necessary  to  remove  the  disability  of  the 
ship  to  proceed  on  her  voyage,  are  now  regarded  as  general  average. 
Such  repairs  must  be  purely  temporary  in  their  nature  and  must 
serve  no  permanent  purpose  (it).  Temporary  repairs  made  solely 
to  save  the  excessive  cost  of  permanent  repairs  are  not  general 
average . 

When  permanent  repairs  can  be  made  at  a  port  of  refuge,  but 
at  a  large  expense,  and  it  would  necessitate  the  discharge  of  cargo 
and  the  incurring  of  heavy  general  average  expenses,  and,  perhaps, 
serious  damage  to  cargo  in  handling,  it  is  the  practice  to  treat  the 
temporary  repairs  as  general  average;  but  it  is  contended  by  some 
that  repairs  in  such  a  case  are  really  substituted  expenses,  and,  in 
fairness,  the  cost  of  such  repairs  should  be  apportioned  on  the  saving 
to  all  parties,  and  there  is  much  to  be  said  in  favour  of  tliis  view. 

Damage  done  to  a  vessel  in  the  efforts  to  extinguish  a  fire  (x), 
or  in  removing  a  vessel  from  the  vicinity  of  a  fire,  is  general  average. 

Damage  done  to  a  vessel  by  salvors  is  general  average  wlien  the 
compensation  of  the  salvors  is  general  average.  This  includes 
damage  done  by  salving  vessels  when  coming  alongside,  &c. 

Coal  and  engine  stores  used  up,  and  damage  done  to  the  vessel 
or  Jier  machinery  through  the  efforts  to  float  a  stranded  vessel,  are 
general  average  when  the  vessel  is  in  a  position  of  peril  and  it 
is  to  be  reasonably  supposed  that  the  possibility  of  damage  was 
withifi  the  contemplation  of  the  master. 

Damage  to  a  vessel's  bottom,  as  being  attributable  to  the  efforts 
to  float  her,  is  very  rarely  allowed  in  general  average  in  this  country, 
for  the  lack  of  clear  proof  that  the  damage  was  due  solely  to  the 
efforts  to  float,  and  not  to  the  stranding  and  pounding  on  tlie  bottom 
by  the  action  of  wind  and  sea. 

The  practice  in  the  United  States  differs  from  that  of  England 
with  regard  to  wreck  cut  aAvay(?/V     If  a  mast  or  spar  should  be 


{t)  Shoe  V.  low  Moor  Iron  Co.,  46  Fed.  Rep.  125  ;  49  Fed.  Rep.  252. 

(?0  Hobsoii  V.  Lord,  92  U.  S.  397 ;  Bowring  v.  Thehand,  42  Fed.  796  ;  Star  of 
Hope,  17  Wall.  651  ;  Phillips  on  Insurance,  5th  ed.  sec.  1500. 

{x)  Nimicl-  v.  Holmes,  25  Penn.  St.  366  ;  Jtalli  v.  Troop,  157  U.  S.  386  ;  sembk, 
Nelson  v.  Belmont,  12  N.  Y.  Sup.  Ct.  310 ;  X.  Y.  and  Cuba  Mail  S.S.  Co.  v.  Reliame 
Mar.  Ins.  Co.,  70  Fed.  262  ;  77  Fed.  317 ;  165  U.  S.  720. 

(y)  [The  difference  seems  to  be  that  in  England  the  question  is  whether  the  wreck, 
even  if  not  cut  away,  was,  in  the  existing  circumstances,  hopelessly  lost.  In  the 
United  States  the  question  is  whether  the  wreckage  could  have  been  saved  in  the 
hypothetical  case  of  the  storm  suddenly  subsiding. — Editoes.] 


tne     H 

J 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

accideutally  carried  away  and  while  hanging-  alongside  should 
threaten  the  general  safety,  and  therefore  should  be  cut  away, 
allowance  must  be  made  in  general  average  for  the  value  of  the 
material  cut  away  (2;).  In  this  case  the  following  language  of 
Butler,  J.,  is  worth  quoting: 

"  Was  there,  at  the  time,  a  reasonable  chance  of  saving 
the  property  but  for  the  continuance  of  the  storm?  If 
there  was,  it  was  not  lost,  and  the  casting  aAvay  of  this 
chance  for  the  common  safety  was  a  voluntary  sacrifice 
Avhich  will  support  a  claim  to  contribution." 

Similarly,  cutting  away  at  sea  a  rudder  torn  loose  in  a  gale,  and 
a  source  of  danger,  is  a  general  average  act  (a). 

In  adjusting  the  loss,  the  value  of  the  material  is  to  be  estimated 
as  if  it  had  been  recovered  from  the  sea  and  stowed  in  safety  on 
board  the  vessel  (&). 

If  it  is  clear  that  the  material  could  not  be  saved  had  the  storm 
immediately  subsided,  or,  if  saved,  would  have  had  no  value,  there 
would  be  no  allowance.  Adjusters  had  before  them  the  difficulty 
of  deciding  the  proper  value  to  allow  for  the  material  cut  away. 
After  the  Mary  Gibbs  judgment  a  working  scale  (c)  for  such  allow- 
ances was  prepared  by  the  late  Captain  F.  A.  Martin,  an  able  expert 
of  the  New  York  Board  of  Underwriters.  This  scale  is  supposed  to 
represent  the  value  of  the  materials  sacrificed,  due  consideration 
being  given  to  the  possibilities  of  damage  while  the  Avreckage  was 
overboard,  and  to  the  fact  that,  even  if  it  were  saved,  certain  ex- 
penses Avould  necessarily  be  incurred. 

In  dealing  with  York-Antwerp  Eule  IV.,  the  American  adjusters 
sometimes  give  it  a  liberal  construction.  If,  in  cutting  away  a  mast 
or  spar  which  has  previously  been  carried  away,  and  is  hanging  aloft 
and  a  source  of  danger  to  the  whole  adventure,  the  wreckage  falls 
and  breaks  the  rails,  or  boats,  or  does  other  damage,  American  ad- 
justers make  allowance  in  general  average  for  the  damag-e  done  by 
the  falling  wreckage,  reasoning  that  the  rule  was  never  intended  to 
exclude  such  damage. 


743 


(2)   The  Margarethe  Blanca,  12  Fed.  728  ;   14  Fed.  59  (1882). 

[a)  May  v.  Keystone  Yellow  Pine  Co.,  117  Fed.  287. 

{b)   The  Mary  Gibbs,  22  Fed.  4G3  (1884). 

(c)  Wooden  masts  and  spars  overboard  ;  when  cut  away,  no  allowance  unless  clearly 
shown  that  they  were  not  broken  at  the  time  of  the  cutting  away.  Iron  masts  and 
spars  allowed  in  full ;  if  known  to  bo  broken,  no  allowance.  Iron  work  on  woodon 
masts  and  spars,  80  per  cent.  ;  blocks,  70  per  cent ;  standing  rigging,  50  per  cent.  ; 
running  rigging,  33|^  per  cent.  ;  sails,  33J  per  cent.  All  of  the  above  to  be  .subject 
to  the  usual  deduction  of  one-third  new  for  old.  No  allowance  to  be  made  for  the 
cost  of  setting  up  the  rigging,  or  masts  and  spars,  as  that  would  be  necessary  in 
any  event.  The  cost  of  refitting  the  rigging  to  be  allowed  on  the  same  basis  as  the 
rigging. 


744 


APPENDIX  V. 


Abnormal 
use  of  engines. 

The   Vandalia, 
1907. 


The 

Marienfeh, 

1909. 


The  Egrement 
Castle,  1907. 


Damage  to 
pumps. 


The  following  are  instances  in  practice  of  damage  resulting  from 
the  abnormal  use  of  engine^: 

Where,  in  consequence  of  a  fire  at  sea,  the  forehold  of  a  steamer 
was  flooded,  which  put  her  down  by  the  head  to  such  an  extent  that 
the  propeller  was  largely  out  of  water  and  the  working  of  the  engines 
under  those  conditions  caused  considerable  damage  to  the  machinery, 
which  was  fairly  within  the  contemplation  of  the  master  and 
engineers,  the  damage  so    sustained  was    made    good    in    general 


average. 


Miscellaneous 
eacrifices  of 
ship. 


Similarlj^  in  another  case,  where  the  foreholds  filled  when  tlie 
vessel  struck  a  rock  and  the  engines  were  worked  under  the  same 
conditions  as  in  the  preceding  case,  the  damage  to  the  machinery 
and  from  the  straining  of  the  after  part  of  the  vessel  was  allowed 
in  general  average. 

Where  fire  broke  out  at  sea  in  the  afterholds  and  large  volumes 
of  smoke  entered  the  tunnel,  and  in  order  to  work  the  engines  it  was 
necessary  to  close  the  tunnel  door,  and  it  was  impossible  for  men 
to  enter  the  tunnel  to  oil  the  bearings,  and  the  engines  were  kept 
going  at  full  speed  to  reach  port,  resulting  in  damage  to  the  bearings 
through  running  the  engines  without  oiling  them,  the  damage  was 
allowed  in  general  average.  The  facts  showed  that  the  damage 
was  contemplated. 

Damage  resulting  from  the  excessive  use  of  pumps  in  freeing 
a  vessel  of  water  is  not  general  average,  the  pumps  having  been 
used  for  the  purpose  for  which  they  were  intended.  If  they  are 
put  to  an  abnormal  use  it  is  general  average. 

A  steamer  had  fire  in  her  cargo  of  chemicals;  the  water  which 
was  used  to  extinguish  the  fire  became  strongly  impregnated  with 
acid,  and  in  pumping  it  out,  the  ship's  pumps  were  seriously 
damaged;  the  adjusters  treated  the  damage  as  general  average. 

On  the  same  principle  it  would  seem  that,  even  if  the  water  had 
not  got  into  the  ship  as  a  result  of  a  sacrifice,  the  damage  to  the 
pumps  would  be  general  average. 

Various  other  acts  in  the  nature  of  sacrifices  are  treated  as  general 
average:  e.g.,  materials  used  up  in  making  a  temporary  rudder  or 
drag,  jury  mast  or  jury  sails,  staving  boats  or  bulwarks  to  let  water 
out  when  the  decks  are  flooded,  sails  used  to  stop  leaks,  or  let  go 
to  righten  a  vessel  and  blown  away,  sails  and  spars  cut  away  to 
save  a  mast  when  the  loss  of  the  mast  would  endanger  the  vessel, 
materials  used  up  in  making  temporary  repairs  at  sea,  damage 
through  tipping  a  vessel  at  a  port  of  refuge  to  make  repairs,  and 
the  abnormal  use  of  the  machinery  or  the  vessel's  appurtenances 
for  a  purpose  for  which  they  were  not  intended. 

In  conclusion,  it  would  seem  that  with  the  exception  of  so-called 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  '^'^^ 

wreck  cut  away  and  voluntary  stranding,  the  law  and  practice  in 
America  concerning  the  sacrifices  to  be  allowed  are  the  same  as  in 
England. 


Sacrifices  of  Cargo. 

-"Jettison,"  says  Gourlie  (fZ),  "has  ever  been  regarded  Jettison, 
as  the  purest  type  of  a  general  average  act;  its  only  claim 
to  this  distinction,  however,  lies  in  its  being  one  of  the 
earliest  occasions  of  a  general  average  act." 

Jettison  of  cargo  to  enable  a  ship  to  receive  passengers  of  a  vessel 
in  distress  is  not  a  general  average  sacrifice  (e). 

A  jettison  made  to  reach  the  seat  of  a  fire  or  to  prevent  it  from  Jettison  to 
spreading  is  a  subject  for  contribution.     Packages  jettisoned  which  |^*^^^  ^^■ 
are  actually  on  fire  are  not  allowed  for(/).     But  burnt  packages  on  fire, 
which  are  no  longer  on  fire  are,  if  jettisoned,  allowed  for  at  their 

estimated  value. 

When  a  portion  of  the  cargo  is  carried  on  deck  in  accordance  Deckload 
with  the  custom  of  the  trade,  and  from  the  circumstances  of  the  case,  ^^ 
the  voyage  and  the  character  of  the  deck  shipment,  such  custom  is 
reasonable  and  just,  compensation  is  due  for  a  necessary  jettison 
oiit  ig){h). 

It  would  seem  that  where  one  shipper  loads  a  full  cargo  of  mixed 
goods,  part  on  deck,  without  any  special  exemption  of  contribution 
on  the  part  of  the  ship,  if  the  deckload  be  jettisoned  the  ship  must 
contribute  to  the  jettison. 

Jettison  of  horses  carried  on  deck  in  accordance  with  custom  is 
general  average  (i) . 

Structures  not  included  within  the  frame  of  the  vessel  are  con-  Poop  and 
sidered  to  be  part  of  the  deck  (fc) .  "^^^^  ^°^«^'- 

Many  of  the  steamers  navigating   on  Long  Island   Sound,  and  Lake,  sound 
on  the  rivers  and  lakes,  are  so  constructed  that  the  cargo  is  all  gj^eamer?. 


{d)  P.  74. 

(e)  Babney  v.  New  England,  ^-c.  Co.,  14  Allen,  300. 
•     (/)  Slater  v.  Eayward  Ruhber  Co.,  2G  Conn.  128. 
{g)  Gourlie,  p.  86,  and  cases  cited,  p.  87,  note  2. 

(/j)  The  rule  of  the  Average  Adjusters'  Association  of  the  United  States  in  dealing 
■with  this  subject  is  as  follows  : 

"Where  cargo  consisting  of  one  kind  of  goods  is,  in  accordance  with  a 
custom  of  the  trade,  carried  on  and  under  deck,  that  portion  of  the  cargo  loaded 
on  deck  shall  be  subject  to  the  same  rules  of  adjustment  in  case  of  jettison,  or 
expenses  incurred,  as  if  the  same  -were  laden  under  deck." 
(t)  Brown  v.  Cornivell,  1  Root  (Conn.)  60  (1773).     This  is  the fir.st  decision  dealing 
■with  general  average  recorded  in  any  American  report. 
{k)  Gourlie,  pp.  88-91  ;   The  Kirkhill,  99  Fed.  575. 


746 


APPENDIX  V. 


Damage 
through 
opening  of 
hatches. 

Damage  in 
extinguish- 
ing fire. 


Eflfect  of 
fault  of  crew. 


Effect  of 
statute 
exempting 
shipowner 
from  losses 
by  fire. 


Increase  of 
smoke  or  fire 
damage  by 
efforts  to  ex- 
tinguish fire. 


necessarily  carried  on  the  main  deck.  In  such  instances  it  is  treated 
for  purposes  of  general  average  as  if  it  were  under  deck  (I). 

Damage  done  to  cargo  by  water  going  down  the  hatches  when 
they  have  been  opened  to  effect  a  jettison,  is  contributed  iov(ll). 

Damage  done  to  cargo  by  water  used  to  extinguish  a  fire,  or  by 
scuttling  or  sinking  the  ship,  for  the  same  purpose,  is  allowed  in 
general  average.  In  fact,  as  Lowndes  states  (m),  the  judgment  in 
Nimick  v.  Holmes  may  be  said  to  have  laid  the  foundation  of  English 
law  on  this  subject.  There  is  some  qualification  of  this  rule  when 
the  steps  are  taken  by  the  port  authorities  without  the  intervention 
or  sanction  of  the  master  (w). 

Pending  the  final  decision  in  The  Jason  case  (o)  it  is  difficult  to 
say  Avhat  effect  the  fault  of  the  crew  has  on  a  claim  for  contribution 
arising  from  fire.  Under  U.  S.  Kevised  Statutes,  4282,  the  shipowner 
is  not  responsible  for  losses  by  fire,  even  though  occasioned  by  fault 
of  the  crew. 

Our  Courts  have  held  that,  although  by  this  statute  the  shipowner 
is  exempted  from  direct  liabilit}',  he  must,  nevertheless,  contribute 
to  sacrifices  of  the  cargo  made  necessary  by  fire  (p). 

Until  The  Jason  is  decided,  it  is  difficult  to  say  what  the  law  is 
regarding  the  liability  of  the  cargo  in  such  a  case  as  respects  sacri- 
fices of  the  vessel.  On  the  authority  of  the  City  of  Para  (g),  it  is 
certain  that  in  any  event  there  must  be  contribution  among  the 
various  cargo  owners. 

It  has  been  stated  that  there  can  be  no  contribution  when  the  nature 
of  the  cargo  is  such  that,  once  it  has  taken  fire,  there  is  no  possi- 
bility of  preventing  its  total  destruction.  An  early  case  (r)  is  often 
incorrectly  cited  as  disallowing  contribution  in  the  case  of  a  cargo 
of  lime,  but  it  merely  states  the  foregoing  principle.  In  fact,  in 
a  more  recent  case  (s)  it  was  decided  that  contribution  was  due  for 
a  cargo  of  lime. 

The  spread  of  fire  or  smoke  damage  incidental  to  proper  efforts 
to  extinguish  the  fire  is  not  general  average  (J,). 

(I)  Ban-is  V.  jVoody,  30  N.  Y.  266. 

(II)  Gourlie,  p.  113  ;   The  Brig  Mary,  1  Sprague,  17. 
(w)  Fourth  edition,  p.  610. 

(m)  Ealli  V.  Troop,  157  U.  S.  386 ;  Nimich  v.  Holmes,  25  Penn.  366 ;  Nelson  v. 
Belmont,  12  N.  T.  Sup.  Ct.  310  ;  iV.  T.  and  Cuba  Mail  S.S.  Co.  v.  Reliance  Mar.  Ins. 
Co.,  70  Fed.  262 ;  77  Fed.  317  ;   165  IJ.  S.  720. 

(o)  Ante,  p.  733. 

[p)  See  cases  cited,  ante,  p.  734,  note  {p). 

(q)  69  Fed.  414  ;  74  Fed.  564. 

(r)   Crocleit  v.  Dodge,  3  Fairf.  (12  Me.)  190  (1835). 

(s)  The  Rapid  Transit,  52  Fed.  320  ;  see  also  Columbian  Ins.  Co.  v.  Ashby,  13  Pet. 
pp.  331,  340. 

(0  N.  Y.  and  Cuba  Mail  S.S.  Co.  v.  Reliance  Marine  Ins.  Co.,  70  Fed.  262; 
77  Fed.  317;  165  U.  S.  720. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  '  ^^ 

Cargo  or  ship's  materials  used  for  fuel  are  treated  as  general  Cargo  burnt 
average,  provided  the  ship  started  on  her  voyage  ^\'ith  an  adequate 
supply  of  fuel.  In  determining  what  is  an  adequate  supply,  the 
quality  of  the  coal,  the  condition,  speed  and  power  of  the  vessel, 
the  length  of  the  voyage  and  the  season  of  the  year  must  be  given 
due  consideration.  Should  the  supply  of  fuel  become  exhausted, 
not  from  unfavourable  Aveather,  but  from  the  insufficiency  of  tlie 
supply,  the  vessel  is  deemed  unseaworthy  and  tlie  parties  at  fault 
must  pay  the  penalty  arising  from  their  neglect  (m). 

Damage  done  to  cargo  by  flooding  a  stranded  vessel  to  prevent  her  Cargo  dam- 

T         ,         •  •  1  /    \  aged  by  flood- 

frora  pounding  to  piece.s,  is  general  average  {x).  i^g.  stranded 

Where  the  cost  of  discharging  or  lightering  cargo  is  general  aver-  vessel  to 
age,  the  damage  done  to  the  cargo,  or  shortage  of  cargo  arising  j^^^^^^^^  ^^^ 
from  such  operations,  is  always  treated  as  general  average.     This  discharging 
includes  damage  by  exposure  while  on  lighters,  or  in  landing  the  °^j.^^^*^""^ 
cargo  on  a  beach  {y). 

Deterioration  of,  or  damage  to  cargo  discharged  at    a    port    of  At  a  port  of 
refuge,  arising  from  delay,  change  of  climate,  wastage,  &c.,  if  the  ^f^f ^e  by 
same  influences  would  have  prevailed  had  the  cargo  been  retained  delay"  change 
on  shipboard,  is  not  a  consequence  of  the  discharge,  and  is  not  con-  of  chmate. 
tributed  for  {z) . 

If,  however,  in  handling  cargo  at  a  port  of  distress  it  is  exposed 
to  the  elements,  which  would  not  have  been  the  case  had  it  remained 
on  board,  the  damage  caused  thereby  is  allowed. 

When  a  voyage  is  broken  up  at  a  port  of  refuge,  and  the  damage  When  voyage 
to  the  cargo  cannot  be  distinguished  as  between  the  act  of  discharging  ^°  ^"  "^' 
and  the  act  of  forwarding,  it  is  the  practice  to  allow  one-half  the 
damage  in  general  average  as  caused  by  the  discharge,  the  other 
half  being  attributed  to  the  reloading  or  forwarding  (a) .  If,  how- 
ever, the  cost  of  forwarding  is  general  average,  the  whole  of  the 
damage  is  allowed. 

When  a  stranded  vessel  is  in  a  state  of  wreck,  and  there  is  no  ^^^^  J"" 
contemplation  of  reuniting  ship  and  cargo,  it  being  a  case  of  sauve  -wreck. 
qui  pent,  the  damage  done  to  cargo  in  handling  is    not    general 
average  (b). 


(«)  Hurlbul  V.  Turnure,  81  Fed.  208. 

{x)  Pacific  Mail  S.S.  Co.  v.  Bypre  et  als.,  74  Fed.  250. 

(«/)  Hennen  v.  Monroe,  8  Martin,  La.,  227  (IV.  449  ;  O.  S.,  1826)  ;  Leivis  v. 
Williams,  1  Hall,  N.  Y.  430;  Gourlie,  213;  Hcyliger  v.  X.  Y.  F.  Ins.  Co.,  II 
Johns.  R.  85. 

(z)  SpafordY.  Dodge,  14  Mass.  C5  (1817) ;  Gourlie,  214. 

(a)  Gourlie,  21G. 

(b)  Ibid. 


748 


APPENDIX  V. 


Goods  burnt 
or  stolen  in 
warehouse,  or 
lost  in  salvage 
operations. 


Cargo  shut 
out  at  a  port 
of  distress. 


Voluntary 
strandinor. 


Hole  made 
by  mast 
cut  away. 


Damage 
through  tip- 
ping vessel  to 
effect  repairs. 
Cargo 
pumped 
overboard. 


Passengers' 
baggage. 


The  damage  to  cargo  by  fire,  while  stored  in  a  warehouse  at  a 
port  of  refuge,  is  not  treated  as  general  average.  There  is,  however, 
dictum  to  the  contrary  (c).  To  make  such  an  allowance  would  cer- 
tainly bo  an  extension  of  the  doctrine  of  general  average.  Ordi- 
narily, the  risk  to  cargo  of  damage  by  fire  is  no  greater  when  it  is 
in  a  warehouse  than  if  it  had  remained  on  the  vessel,  and  such  loss 
is  in  the  nature  of  a  second  accident.  If  that  were  allowable,  then 
a  vessel  moored  at  a  wharf  in  a  port  of  distress  and  damaged  by 
fire  communicated  from  the  wharf  would  be  equally  entitled  to  con- 
tribution for  her  damage. 

Cargo  pilfered  or  stolen,  whether  from  a  warehouse,  or  by  steve- 
dores handling  it  at  a  port  of  refuge,  or  in  salvage  operations,  is 
in  practice  allowed. 

AYhere  on  account  of  the  lack  of  proper  facilities  for  restowing 
cargo  which  has  been  discharged  at  a  port  of  distress,  part  of  it 
is  shut  out  and  is  forwarded  by  another  vessel,  or  sold,  the  expense 
or  loss  arising  therefrom  is  treated  as  general  average  ((Z). 

Cargo  damaged  through  the  voluntary  stranding  of  a  vessel  is  a 
subject  of  contribution,  but  where,  after  the  voluntary  stranding, 
water  enters  the  vessel  through  holes  or  leaks  existing  prior  to  the 
voluntary  stranding,  the  damage  caused  thereby  is  not  recover- 
able (e). 

Where  in  cutting  away  a  mast  it  splinters  and  tears  up  the  deck, 
and  thereby  water  gets  into  the  hold  and  damages  the  cargo,  this 
damage  is  contributed  for  (/) . 

Where  a  vessel  is  tipped  to  effect  repairs  and  the  cargo  is  damaged 
thereby,  it  is  the  subject  of  contribution. 

Cargo  pumped  up  at  sea  in  relieving  a  ship  of  water  (not  in  the 
ship  as  the  result  of  a  sacrifice)  is  not  treated  as  general  average, 
there  being  no  intention  on  the  master's  part  to  make  a  sacrifice. 
Where,  however,  as  frequently  happens  on  the  Great  Lakes,  cargo, 
such  as  grain,  is  deliberately  pumped  overboard  by  salvage  pumps 
to  lighten  the  vessel,  allowance  is  made  in  general  average. 

Passengers'  baggage  stored  in  the  ship's  compartments,  and  not 
in  use  on  the  voyage,  is  contributed  for  in  case  of  sacrifice  (g). 


(c)  Jiriff  Mary,  1  Sprague,  17  (1841). 
{d)  Gourlie,  218. 

(e)  Fowler  v.  Rcdhhones,  13  Wall.  102  ;  Xorwich  and  N.  Y.  Trans.  Co.  v.  Ins.  Co. 
ofN.  A.,  118  Fed.  307  ;  129  Fed.  1006 ;  194  U.  S.  637. 

(/)  Maggrath  v.  Church,  1  Caines,  N.  Y.  196;  Brig  Mary,  1  Sprague,  17. 
[g)  Heye  v.  North  German  Lloyd,  33  Fed.  60. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 


749 


As  Lowndes  says  (h):  Conclusion. 

"  Looked  at  broadly,  then,  it  may  be  said  that  this 
branch  of  the  laAV  of  the  United  States  refe?:ring  to  sacri- 
fices of  cargo  is  identical  with  our  own." 

The  only  difference,  apparently,  is  in  the  case  of  cargo  damaged 
through  voluntary  stranding  (i). 


Sacrifices  of  Freight. 

Freight  lost  as  a  consequence  of  a  general  average  act  or  sacri- 
fices is  to  be  contributed  for(fc). 


Extraordinary  Expenditure. 
I.  Salvage  Charges. 

Where  the  services  of  salvors  are  rendered  at  a  time  of  imminent  Salvage  in 
peril,  arc  continuous,  and  benefit  both  vessel  and  cargo,  the  com-  general, 
pensation  paid  to  the  salvors,  however  or  whenever  liquidated,  is 
general  average  (Z). 

For  many  years  a  controversy  existed  in  the  United  States  as  to 
whether  or  not  compensation  for  salvors'  services  for  the  common 
benefit  Avas  properly  general  average.  It  was  argued  that  when  each 
interest  made  a  separate  settlement  of  the  salvors'  claims,  or  the 
salvage  was  awarded  by  the  Court,  the  settlements  effected  were 
final  and  should  not  be  reapportioned  as  general  average.  The  other 
view  was  that  the  employment  of  salvors  was  akin  to  the  jettison 
of  cargo,  or  to  other  steps  taken  to  relieve  the  adventure  from  peril; 
the  object  to  be  attained  was  the  general  safety,  and  it  was  a  general 
average  act. 


{h)  Fourth  edition,  p.  613. 

(t)  [A  rule  of  practice  of  the  English  Association  of  Average  Adjusters  certainly 
excludes  from  general  average  the  damage  to  ship  or  cargo  resulting  from  a 
voluntary  stranding,  except  when  such  damage  is  done  by  beaching  or  scuttling 
a  ship  on  fire,  but  the  English  Courts  have  not  had  an  opportunity  of  laying  down 
a  rule  of  law  on  this  subject. — Editoes.] 

(/t)   The  Nathaniel  Hooper,  3  Sumner,  543  ;  Mutual  Ins.  Co.  v.  Brig  George,  Olcott, 

89—157. 

(/)  The  Jason,  162  Fed.  56;  178  Fed.  414.  This  feature  of  The  Jason  case  is 
not  on  appeal  to  the  Supreme  Court,  and  the  law  may  now  be  regarded  as  settled. 
See  also  McAndrews  v.  Thatcher,  3  Wall.  347  (U.  S.  Sup.  Ct.). 


760 


APPENDIX  V. 


Life  salvage. 


Complex 

salvage 

operations. 


Salvag-c  liabilities  are  a  lien  on  the  property,  aud,  iu  incurring 
them,  the  master,  in  effect,  makes  a  sacrifice  of  the  property.  In 
earlier  days  the  settlement  of  salvage  claims  on  cargo  was  frequently 
made  by  a  delivery  in  kind,  and  in  such  circumstances  allowances 
would  be  made  in  general  average  for  the  cargo  delivered  to  the 
salvors . 

The  Jason  stranded,  and  was  floated  by  salvors  and  taken  to  desti- 
nation with  her  cargo  on  board.  The  services  were  continuous,  and 
there  was  no  separation  of  interests.  The  vessel  and  cargo  interests 
settled  with  the  salvors  separately  and  on  a  different  basis.  In  the 
average  statement  the  entire  payments  were  pooled  as  general 
average,  and  the  Court  expressly  approved  this  method  of  equalizing 
the  burden  of  the  salvage  expenses. 

The  law  of  the  United  States  differs  from  English  laAv  in  that 
there  is  no  liability  for  life  salvage,  althoug"h,  where  the  salvors 
save  life  in  conjunction  with  property,  that  fact  receives  consideration 
in  the  Court's  award. 

If  life  salvage  is  incurred  in  a  foreign  port,  and  the  vessel  com- 
pletes her  voyage  to  the  United  States,  tlie  amount  paid  would  be 
recoverable  iu  general  average,  on  the  theory  that  there  was  a  lien 
on  the  property  for  it  while  the  vessel  and  cargo  were  within  the 
foreign  jurisdiction. 

Where,  after  stranding,  the  ship  and  cargo  are  saved  by  one  con- 
tinuous series  of  measures,  as,  discharging,  heaving  off  the  empty 
vessel  and  reloading,  and  the  voyage  is  resumed,  all  of  these  ex- 
penses are  general  average  (m) .  In  fact,  it  may  be  said  that  even 
if  the  voyage  is  not  resumed,  and  the  expenses  are  incurred  while 
there  is  still  a  fair  expectation  of  the  continuance  of  the  voyage  (w), 
the  whole  of  the  expenses  up  to  the  time  the  voyage  is  abandoned 
are  general  average,  even  though,  before  the  ship  was  floated,  the 
cargo  may  have  been  discharged  and  put  in  a  place  of  safety. 


(/h)  X.  Y.  and  Cuba  JL  S.  S.  Co.  v.  Rdiance  Mar.  Ins.  Co.,  70  Fed.  262  ;  77  Fed. 
317  ;  165  U.  S.  720  ;  McAndrews  v.  Thatcher,  3  Wall.  347.  In  the  latter  case  the 
Court  said:  "Except  when  the  disaster  occurs  in  the  port  of  destination,  or  so 
near  it  that  the  voyage  may  be  regarded  as  ended,  the  master,  if  the  goods  are  not 
perishable,  has  the  right,  and  if  practicable,  it  is  his  duty  to  get  off  the  ship, 
reload  the  cargo,  and  prosecute  the  voyage  to  its  termination.  Where  the  whole 
adventure  is  saved  by  the  master,  as  the  agent  of  all  concerned,  the  consignments 
of  the  cargo  first  unladed  and  stored  in  safety  are  not  relieved  fi-om  contributing 
towards  the  expenses  of  saving  the  residue,  nor  is  the  cargo,  in  that  state  of  the 
case,  relieved  from  contributing  to  the  expenses  of  sa^-ing  the  ship,  provided  the 
ship  and  cargo  were  exposed  to  a  common  peril,  and  the  whole  adventure  was 
saved  by  the  master  in  his  capacity  as  agent  of  all  the  interests,  and  bj'  one 
continuous  series  of  measures  "  (p.  371). 

(«)   The  Joseph  Far  well,  31  Fed.  844. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  "51 

Where  the  stranding  occurs  near  the  port  of  destination  and  the  Where 
cargo  is  discharged  and  delivered  to  tlie  consignees,  and  the  vessel  pj^^^f 
is  subsequently  floated,  the  situation  is  more  difficult.  destination. 

In  Mc Andrews  v.  Thatcher  (o),  the  ship  Rachel,  bound  for  New 
York,  stranded  during  a  gale  in  the  Lower  Bay  of  New  York.  In- 
effectual efforts  were  made  to  tow  the  vessel  afloat.  Salvors  Avere 
then  employed  by  the  master.  Being  unable  to  move  tlie  vessel 
otherwise,  they  discharged  the  cargo  into  lighters  and  transported 
it  to  New  York,  where  it  was  landed  in  care  of  the  ship's  agents, 
and,  on  an  average  bond  being  signed,  was  delivered  to  the  con- 
sio-nees.  A  few  days  later  the  salvors  abandoned  their  efforts  to 
save  the  ship.  Thereupon,  the  underwriters  on  the  ship  sent  other 
salvors  aboard  the  vessel.  Four  days  later,  the  crew  having  refused 
duty,  the  master,  being  unable  to  do  more  than  he  had  done,  aban- 
doned the  ship  and  left  her  where  she  lay  in  charge  of  the  agents 
of  the  underwriters.  The  salvors  employed  by  the  underwriters 
succeeded  in  floating  the  ship  about  six  weeks  later,  but  at  an  ex- 
pense exceeding  her  value  when  saved.  The  shipowners,  suing  for 
account  of  their  underwriters,  claimed  that  the  entire  salvage,  in- 
cluding the  compensation  paid  to  the  salvors  employed  by  the  under- 
-wrriters,  after  the  cargo  had  been  delivered  and  the  master  had 
abandoned  the  ship,  should  be  treated  as  general  average.  The 
United  States  Circuit  Court  for  the  Southern  District  of  New  York 
upheld  this  view,  but  the  decision  was  reversed  in  the  Supreme  Court. 
It  was  held  in  the  latter  Court  that  the  liability  of  cargo  to  contri- 
bute in  general  average  in  favour  of  the  ship  does  not  continue  after 
the  cargo  has  been  completely  separated  from  the  vessel,  so  as  to 
leave  no  community  of  interest  remaining,  and  that,  in  the  circum- 
stances of  the  case,  community  of  interest  ceased  when  the  master 
abandoned  the  ship. 

In  the  course  of  the  opinion,  Mr.  Justice  Clifford  considered  the 
contention  which  was  presented,  "  tliat  if  the  vessel  docs  not  float 
when  the  whole  cargo  is  discharged,  the  subsequent  expenses  do 
not  concern  the  cargo,  but  are  particular  average  on  the  vessel  in 
the  same  manner  as  repairs."  He  refused  to  admit  it  as  a  con-ect 
statement  of  the  rule,  saying  (p) : 

"Although  the  stranded  vessel  may  not  float,  as  a  con- 
sequence of  the  unlading  of  the  goods,  still  she  may  be  so 
lightened  by  the  operation,  that  the  usual  appliances  at 
hand  may  be  amply  sufficient  to  enable  the  master  to  rescue 
the  vessel  without  much  expense  or  delay,  and  put  her 


(o)  3  Wall.  347. 

Ip)  3  Wall,  at  p.  368. 


T62  APPENDIX  V. 

in  a  condition  to  receive  back  the  cargo  and  transport  it 
to  the  port  of  destination;  and,  in  the  case  supposed,  it 
cannot  be  doubted  that  the  expense  of  saving-  the  vessel, 
as  well  as  the  expense  of  preserving  and  reloading  the 
cargo,  would  be  the  proper  subject  of  general  contribu- 
tion." 

Dealing  particularly  with  the  case  of  a  stranding  in  the  harbour 
of  the  port  of  destination,  Clifford,  J.  (g),  said: 

"  So,  where  the  cargo  consists  of  various  consignments, 
and  the  vessel  is  stranded  in  tlie  harbour  of  the  port  of 
destination,  it  will  seldom  or  never  happen  that  all  the 
consignments  will  be  delivered  at  the  same  time.  On  the 
contrary,  some  of  necessity  will  be  delivered  before  others; 
and  yet,  if  the  unlading  of  the  cargo  has  the  effect  to  make 
the  vessel  float,  and  tlie  whole  adventure  is  saved  by  one 
continual,  unremitted  operation,  under  the  directions  of  the 
master,  as  the  agent  of  all  concerned,  it  would  seem  that 
the  case  was  one  falling  directly  Avithin  the  equitable  prin- 
ciple of  general  average,  which  requires  that  all  the  interests 
shall  contribute  for  the  expenses  incurred  to  save  the  whole 
adventure  from  common  peril." 

In  view  of  this  statement  of  tlie  law  it  was  for  many  years  the 
practice  of  adjusters,  when  a  vessel  was  stranded  near  her  port  of 
destination  and  the  cargo  was  all  discharged,  and  subsequently  the 
vessel  was  floated,  sometimes  after  a  long  delay,  to  treat  the  whole 
of  the  salvage  charges  as  general  average.  But  in  1888  tlie  correct- 
ness of  this  practice  was  challenged  in  tlie  case  of  L'Amerique  (r), 
which  stranded  near  New  York,  her  destiiLation,  and  was  not  floated 
until  some  ten  weeks  after  the  cargo  had  been  delivered,  although 
the  operations  were  continuoiis.  The  United  States  District  Court 
did  not  consider  McAndrews  v.  Thatcher  authority  for  treating,  in 
such  a  case  as  L'Amerique,  the  expense  of  floating  tlie  vessel  as 
general  average.  The  case  was  not  aj^pealed,  but  on  its  special 
facts  is  doubtless  correct,  though  some  of  tlie  reasoning  in  the  opinion 
is  open  to  question. 

In  the  interval  between  the  decision  in  McAndrews  v.  Thatcher  (s), 
and  U Amerique  (t),  the  Supreme  Court  of  the  United  States  decided 
the  case  of  The  Julia  Blake  {u),  in  which  emphasis  was  laid  on 

{q)  3  Wall,  at  p.  368. 
(r)  35  Fed.  835. 
(s)  (1865),  3  Wall.  347. 
(0  (1888),  35  Fed.  835. 
(«)  (1882),  107  U.  S.  418. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

the  doctrine  that  the  authority  of  the  master  to  bind  the  cargo,  iu 
extraordinary  emerg-encies,  is  limited  to  cases  in  which  his  action 
maj'  reasonably  be  expected  to  be  directly  or  indirectly  for  the  benefit 
of  the  cargo,  considering  the  situation  in  which  it  has  been  placed 
by  the  accidents  of  the  voyage. 

In  L'Amerique,  Brown,  J.,  was  called  upon  to  consider  the  effect 
of  the  language  above  quoted  from  McAndrews  v.  Thatcher,  in  the 
light  of  the  subsequent  decision  in  The  Julia  Blake.  Starting  with 
the  statement  of  Justice  Clifford,  in  McAndreivs  v.  Thatcher  (x), 
that  "  no  interest  is  compelled  to  contribute  to  the  loss  or  expense, 
which  was  not  benefited  by  the  sacrifice,"  in  substance  he  found  that 
the  expense  of  salving  the  ship,  after  the  cargo  was  removed,  ex- 
ceeded, by  two -thirds,  the  cost  of  unloading  and  delivering  the  cargo 
to  its  owners  by  lighters;  and  that,  accordingly,  the  cargo's  propor- 
tion of  the  subsequent  salvage  was  so  very  much  greater  tlian  the 
benefit  which  it  would  have  received  from  the  subsequent  salvage, 
by  having  the  ship's  value  preserved  for  contributory  purposes,  that 
there  never  could  reasonably  have  been  an  expectation  that  the  sub- 
sequent salvage  operation  on  the  ship  would  benefit  the  cargo.  His 
findings  amount,  therefore,  to  holding  that'  the  voyage  was  in  effect 
broken  up  by  the  stranding,  and  that  the  community  of  interests 
should  be  deemed  to  have  ended,  under  the  special  circumstances, 
A\ith  the  unloading  of  the  cargo. 

The  case  of  L'Amerique  does  not  lay  down  any  fixed  rule  as  to 
the  line  of  demarcation  between  cases  such  as  are  referred  to  in  tlie 
statement  of  Justice  Clifford  in  McAndrews  v.  Thatcher  (//),  and 
that  which  was  before  the  Court.  No  definite  rule  on  the  subject  can 
be  stated  with  confidence.  The  result  of  the  decisions  seems  to  be 
that  when  a  vessel  strands  near  her  destination  and  her  cargo  is 
discharged  and  delivered  at  destination  by  lighters,  or  other  similar 
means,  the  salvage  and  other  extraordinary  expenses  up  to  the  time 
of  delivery  of  the  cargo  are  g-eneral  average,  and  the  subsequent 
expenses  of  floating  the  ship  are  charg-eable  to  the  ship  unless  she 
is  floated  without  much  expense  or  delay  after  tlio  cargo  has  been 
delivered.  In  the  latter  event  all  tlie  extraordinary  expenses  are 
to  be  treated  as  general  average. 

In  the  judgment  in  L'Amerique,  the  Court  furtlier  states  that: 

"after  unloading,  the  subsequent  work  of  forwarding  the 
cargo  to  its  owners  in  no  way  concerned  tlie  ship  or  its 
safety,  but  the  cargo  and  freight  only." 

This  seems  distinctly  wrong.  The  Court  having  decided  that  the 
unloading  of  the  ship  was  a  general  average  act,  it  seems  clear  that 

(a-)  3  Wall,  at  p.  369. 
(y)  Ibid. 
L,  3  c 


753 


754 


APPENDIX  V. 


"Where  not 
continuous. 


General 
wreck. 


Voluntary 
salvors. 

Specie. 


Credit  for 
ordinary- 
expenses 
saved. 


the  general  average  interest  in  that  act  cannot  cease  until  the  cargo 
is  taken  to  a  place  of  safety,  which  in  tliis  instance  was  its  destina- 
tion; and  in  practice  this  expense  is  dealt  with  accordingly. 

Where  the  services  are  not  continuous  and  the  property  is  saved 
by  a  different  series  of  operations,  after  a  separation  of  interests, 
the  compensation  of  the  last  salvors  is  not  general  average  to  which 
all  interests  contribute  (z). 

"  In  case  of  a  general  shipwreck,  the  essential  principle 
of  contribution  is  wanting,  there  being  no  voluntary  act 
done  for  the  common  safety  of  the  whole.  Consequently, 
every  man  must  take  care  of  what  belongs  to  him,  and 
must  endeavour  by  his  own  exertions  to  save  it  "  (a). 

The  compensation  paid  to  voluntary  salvors  such  as  might  bring 
a  derelict  into  port,  is  not  general  average. 

Specie  contributes  to  salvage  (b)  and  general  average  on  the  same 
basis  as  does  other  cargo. 

When  the  compensation  of  salvors  is  general  average,  a  credit 
must  be  given  for  such  ordinary  expenses  as  would  have  been  in- 
curred, but  have  actually  been  saved  by  the  salvage  services. 

The  Association  of  Average  Adjusters  of  the  United  States  have 
a  rule  dealing-  with  the  subject  (c). 


EXTR.'V.ORDINARY  EXPENDITURES. 

2.  Port  of  Refuge  Expenses. 
Principle.  The  American  law  and  practice  on  this  subject  is  now  to  all  in- 

tents the  same  as  when  laid  down  in  Campbell  v.  The  Alknomac  (d). 
As  there  has  been  no  change  in  this  respect  since  Lowndes's  Fourth 
Edition,  his  admirable  summary  of  the  subject  may  be  appropriately 
repeated  here  (e). 

"  The  American  law  is  thoroughly  consistent  on  the 
subject  of  port  of  refuge  expenses.  Eecognizing  the 
seeking  of  a  port  of  refuge  as  a  sacrifice  for  the  common 
good,  or  general  average  act,  it  treats  all  the  expenses 
occasioned  thereby  as    the  subjects    of    general    average. 


(z)  McAndreivs  v.  Thatcher,  supra;  Pacific  Mail  S.S.  Co.  v.  N.  Y.  H.  and  R. 
Mining  Co.,  69  Fed.  414  ;  74  Fed.  564  {The  City  of  Para). 

(a)  Caze  v.  ReiUy  (1814),  3  Wash.  298  ;   Gourlie,  391. 

(b)  The  St.  Paul,  82  Fed.  104  ;  86  Fed.  340  ;   The  Miilhouse,  Fed.  Gas.  9910. 

(c)  V.  Where  salvage  services  are  rendered  to  a  vessel,  or  she  becomes  disabled 
and  is  necessarily  towed  to  her  port  of  destination,  and  the  expenses  of  such 
towage  are  allowable  in  general  average,  there  shall  be  credited  against  the  allow- 
ance such  ordinary  expenses  as  would  have  been  incurred,  but  have  been  saved  by 
the  salvage  or  towage  services. 

{d)  (1798),  Bee,  124;  Fed.  Cas.  2350;  ante,  p.  719. 
{e)  Lowndes,  4th  ed.  p.  619. 


LAW  OF  THE  UNITED  STATES  OF  AMEKICA.  755 

and  draws  no  distinction  between  the  expenses  of  going 
in  and  coming  out  again.  This  is  equally  the  rule,  whetlier 
the  damage  to  the  ship  which  necessitated  the  seeking  of 
the  port,  were  tlie  result  of  some  other  sacrifice,  or  of  an 
accident.  If,  indeed,  the  vessel  were  to  put  into  port 
merely  to  avoid  contrary  winds,  no  contribution  would  be 
due,  this  not  being  a  sufficient  danger;  but  if  to  avoid 
danger  from  a  tempest  the  ship  was  judiciously  taken  into 
port,  though  herself  intact,  allowance  should  be  made  (/) . 
If  a  ship  goes  into  port  for  want  of  provisions  or  fuel, 
the  expense  is  only  treated  as  general  average  in  case  it 
is  shown  that  the  ship's  original  supply  was  sufficient,  and 
that  it  had  fallen  short  through  some  accident. 

"  '  The  allowance  in  general  average,'  says  Gourlie,  'is 
to  be  strictly  limited  to  such  charges  as  are  a  consequence 
of  the  putting  in.  Where  the  loss  is  in  the  nature  of  a 
second  casualty,  not  contemplated,  nor  necessarily  connected 
with  the  first  step,  then  it  is  not  general  average  {g).  For 
example,  if  the  shijp  is  accidentally  damaged  by  stranding, 
while  attempting  to  enter  a  port  of  refuge,  this  damage 
would  not  be  considered  general  average.'  On  the  other 
hand,  it  would  seem  that  this  princij)le  would  not  govern 
the  case  of  a  distressed  vessel,  threatened  by  a  storm,  when 
the  master  knowingly  braves  the  dangers  of  an  unknown 
port,  and  is  stranded  while  attempting  the  harbourage  (Ji). 

"  The  cost  of  unloading,  storing,  and  reloading  cargo.  Discharging 
and  the  damage  incident  thereto,  are  treated  as  general  <^3.rgo,  &c. 
average  "  (^). 

Where  a  vessel  is  moored  in  an  open  port  and  a  storm  or  some  other  Putting  to  sea 
peril  threatens  the  adventure,  and  for  the  general  safety  the  vessel  *°  ^^'^'^P^ 
puts  out  to  sea  and  subsequently  returns,  the  Avages  and  provisions 


(/)  Lawrences.  Minturn  (1854),  17  How.  100;  Gourlie,  241. 

[g]  GourUe,  241. 

(A)   The  Star  of  Hope  (1869),  9  Wall.  203  ;   Gourlie,  241—243. 

(i)  "  Gourlie,  278.  This  appears  to  be  equally  the  rule  whether  the  cargo  is 
discharged  for  the  common  safety  at  the  moment,  as  because  it  is  not  in  safety  in 
port  while  on  board,  nor  the  ship  safe  while  it  is  there,  or  is  merely  discharged  for 
the  purpose  of  getting  at  the  inside  of  the  ship  to  repair  accidental  damngo,  the 
discharging  being  treated  as  a  necessary  part  of  the  act  of  bearing  up  in  order  to 
effect  such  repairs.  Here  the  law  of  America  clearly  goes  beyond  the  principle 
laid  down  in  our  case  of  Scemhcn  v.   Wallace,  ante,  pp.  197 — 214. 

"  '  Included  therein,'  says  Gourlie,  i.e.,  in  the  expense  of  discharging,  treated  as 
general  average,  '  is  the  hire  of  men  breaking  out  cargo  in  the  ship,  as  well  as  the 
lighterage  or  transportation  to  the  storehouse,  the  storage,  warehouse  rent,  or 
hulkhire,  the  handling  while  in  store,  whether  in  tiering  it  up,  or  subsequently  for 

ac2 


75() 


APPENDIX  V. 


Removal  to 
another  port 
for  repaiis. 


Charges  on 
passenger.s. 


Substituted 
expenses. 


of  the  crew,  or  coal  and  engine  stores,  or  other  exi^euses  thereby 
incurred  are  in  practice  treated  as  general  average,  the  act  being 
akin  to  putting  into  a  port  of  refuge. 

Where,  after  a  vessel  puts  into  a  port  of  refuge  and  it  is  neces- 
sary to  effect  repairs,  and  there  are  no  facilities  at  that  port  for 
handling  the  cargo  or  for  making  the  repairs,  the  cost  of  taking 
the  vessel  to  another  port  is  treated  as  general  average.  If  the  cargo 
be  discharged  at  the  first  port  and  the  vessel  is  then  taken  to  a 
second  port,  unless  the  damages  to  the  ship  were  the  result  of  a, 
sacrifice,  the  cost  of  removing  the  vessel  to  and  from  the  repair 
port,  being  for  the  benefit  of  the  shipowTier,  is  charged  to  the  ship. 
When  the  repairs  are  of  both  a  general  and  particular  average 
nature,  the  expenses  of  removal  are  apportioned  on  the  basis 
of  the  cost  of  the  respective  repairs.  Wages  and  keep  of  the 
crew  during  this  further  prolongation  are  chargeable  to  general 
average  on  the  ground  that  this  delay  is  but  an  extension  of  that 
incurred  from  the  moment  of  the  voluntary  departure  from  the 
course  of  the  voyage  (k) .  The  reason  a  distinction  is  made  under 
such  circumstances  between  wages  and  port  dues,  or  removal  ex- 
penses, is  that  the  latter  are  deemed  to  be  akin  to  the  towing  of  a 
vessel  in  a  port  of  distress  to  the  shipyard  for  repairs  after  the 
cargo  has  been  discharged. 

The  charges  incurred  for  the  accommodation  of  passengers  landed 
at  intermediate  ports  in  order  that  the  ship  may  be  repaired  are 
for  the  account  of  the  shipowner  (I). 

The  American  law  on  the  subject  of  substituted  expenses  is  still  in 
an  unsatisfactory  condition.  The  number  of  such  cases  is  constantly 
increasing,  and  the  Courts  do  not  seem  disposed  to  assist  in  bringing 
about  a  solution  of  what  all  must  consider  to  bo  a  reasonable  pro- 
cedure.    The  theory  of  substituting  a  lesser  loss  for  a  greater  is  one 


"  'its  better  preservation,  the  fire  insurance  premium,  cost  of  watchman,  agency 
commission  for  the  care  and  custody  of  the  merchandise  discharged,  any  repair  or 
replacement  to  packages,  required  because  of  damage  received  while  handled  ;  or, 
if  by  reason  of  the  nature  of  the  cargo,  or  because  of  the  lack  of  facility  for  ware- 
housiug,  it  is  not  stored,  then  the  cost  of  tarpaulins  or  other  covering,  where 
necessary  for  its  protection  ;  likewise  the  charges  for  reloading,  and  stowage  in  the 
ship,  these  being  considered  as  expenses  incurred  in  direct  consequence  of  the  act  of 
deviation,  and  as  a  necessary  result  of  the  need  of  repair,  and  the  completion  of  the 
adventure.  If,  however,  the  condition  of  the  cargo  requires  the  unloading  and  the 
repaii-s  necessary  to  the  vessel  can  be  made  without  a  discharge,  the  cost  and 
expenses  above  enumerated  are  charged  specially  to  the  cargo.  The  storage  and 
attendant  expenses  are  general  average  only  up  to  the  time  the  continuation  of  the 
voyage  remains  in  expectancy  ;  when  it  is  decided  that  it  shall  be  broken  up,  the 
storage,  &c.  is  charged  entirely  to  the  cargo.'  The  decisions  in  the  Courts  which 
have  authorized  these  conclusions  are  given  in  Mr.  Gourlie's  notes." 

{k)  Gourlie,  245. 

(/)    JFestoH  V.  Train,  2  Curt.  49  ;  Gourlie,  239. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

whidi  should  appeal  to  all  interested  in  the  common  venture,  and 
every  encouragement  should  be  given  to  the  master  or  shipowner 
to  act  on  that  theory.  Certainly  the  present  state  of  the  law,  in 
some  instances,  affects  the  course  followed. 

In  but  one  case  in  our  Courts  has  this  question  been  fully  con- 
sidered. That  case  was  in  the  Courts  of  the  State  of  Maryland, 
and  it  is  a  coincidence  that  such  an  important  question  should  be 
involved  in  the  only  recorded  decision  on  general  average  I  can 
find  to  have  been  decided  in  the  Maryland  Courts. 

The  Mary  F.  Hugg  (m),  in  the  course  of  a  voyage  from  Chili  to 
Baltimore,  sprang  a  leak  in  bad  weather,  and  put  into  Eio  de  Janeiro. 
The  surveyors  recommended  that  "she  be  light/ened,  say  400  or 
500  tons,  and  that  the  same  be  shipped  to  port  of  destination  to 
avoid  heavy  cost  of  landing,  warehousing  and  attendant  expenses 
upon  the  same."  Pursuant  to  this  recommendation,  300  tons  of  cargo 
were  forwarded  to  destination  by  another  vessel,  and  the  Mary  V. 
Hugg  proceeded  to  destination  with  the  remainder  of  her  cargo. 
The  Court  decided  that  these  substituted  expenses  were  not  general 
average,  but  a  charge  on  the  freight  so  far  as  that  would  pay  it, 
and  if  there  was  any  balance  it  Avas  a  charge  on  the  cargo. 

The  Court  quoted,  with  approval,  the  following  Avords  of  Lord 
Blackburn  in  Wilson  y.  Bank  of  Victoria  (n): 

"  But,  passing  by  this,  we  think  that  the  expenses 
actually  incurred  must  be  apportioned  according  to  the  facts 
Avhich  actually  happened,  and  that  there  is  no  legal  prin- 
ciple on  which  they  can  be  apportioned  according  to  what 
might  have  been  the  facts  if  a  different  course  had  been 
pursued." 

The  Court's  conclusion  was  based  largely  on  the  statement  of 
law  that  if  the  ship  was  irreparable,  the  expense  of  forwarding  the 
cargo  Avas  not  general  average,  and,  therefore,  the  forwarding  of  a 
portion  of  the  cargo  must  be  governed  by  the  same  principle. 

In  another  case  (o),  the  steamer  Earnmoor,  bound  to  St.  Thomas 
from  Philadelphia,  with  a  cargo  of  coal,  struck  a  rock  in  the  DelaAvare 
River  and,  to  prevent  sinking,  was  run  ashore.  She  Avas  floated 
after  lightering  a  portion  of  the  cargo,  and  taken  to  "\Mlmington. 
It  Avas  evident  that  the  subsequent  repairs  to  the  A^essel  Avould  occupy 
considerable  time.  A  surA^ey  AA-as  held  and  it  Avas  recommended  that, 
in  order  to  avoid  greater  general  average  expenses,  the  voyage  be 
abandoned.  By  agreement  betAveen  ship  and  cargo,  to  Avhich  many 
of  the  underwriters  on  both  Avere  parties,  the  cargo  Avas  sold  and  the 

[m)  Htn/g  v.  Baltimore  and  Cuba  S.  and  M.  Co.  (1872),  35  Md.  414. 

(h)  L.  k  2  Q.  B.  203  ;  36  L.  J.  (Q.  B.)  89. 

(o)  Earnmoor  S.S.  Co.  v.  Xew  Zealand  Ins.  Co.,  73  Fed.  867. 


'57 


758  APPENDIX  V. 

loss  oil  freight  and  cargo  resulting  from  the  sale  was  allowed  in 
general  average.  An  underwriter,  who  was  not  a  party  to  the  agree- 
ment, contended  that  the  loss  of  freight  and  cargo  resulting  from 
the  sale  were  not  general  average,  and  the  United  States  District 
Court  took  that  view  of  it.  The  reasoning  of  the  opinion  is  very 
unsatisfactory,  the  only  reference  to  the  doctrine  of  substituted  ex- 
penses being  a  statement  to  the  effect  that  the  sale  of  cargo  as  a 
matter  of  convenience  and  from  prudential  reasons  merely,  will  not 
be  sufficient  to  make  the  payment  of  freight  a  general  average  charge. 
On  the  other  side  of  the  question  we  have  the  following: 
In  an  opinion  of  Addison  Brown,  J.,  one  of  our  most  learned 
judges  in  such  matters,  in  a  case  (p)  where  allowance  was  made  in 
g-eneral  average  for  the  extra  cost  of  docking  cargo  when  the  ship 
was  placed  in  dry  dock  for  repairs  Avith  her  cargo  on  board,  he 
used  this  language: 

"  If  upon  such  facts  the  case  is  entitled  to  be  treated 
like  one  arising  in  a  port  of  refuge  in  order  to  make  neces- 
sary repairs  of  damages  caused  by  a  sea  peril,  then,  ac- 
cording to  the  law  of  this  couutiy,  tlie  docking  of  the  cargo 
as  an  expense  substituted  in  place  of  unloading  and  re- 
loading, would  be  a  general  average  charge  as  weU  as 
merely  temporary  repairs  of  the  ship." 

In  another  case,  the  vessel  was  bound  to  Chicago  with  a  cargo 
of  lumber.  She  was  damaged  in  a  collision  and  put  into  Mackinaw, 
where  she  discharged  the  deckload,  made  slight  repairs,  and  was 
towed  to  Milwaukee,  the  nearest  port  of  repair,  and  thence  by  another 
tug  to  Chicago.  The  Court  held  that  the  entire  expense  was  general 
average  (q). 

In  considering  this  subject,  the  language  of  Willes,  J.,  and  Clif- 
ford, J.,  is  appropriate  (r). 

The  test  applied  in  the  Mary  V.  Hugg  case  (s)  does  not  seem  sound 
in  principle.  In  the  case  of  the  irreparable  ship  the  object  to  be 
attained  was  to  get  the  cargo  to  destination;  whereas,  in  the  case 
before  the  Court  the  forwarding  of  part  of  tlie  cargo  was  to  save 
the  general  interests  the  greater  expense  of  landing,  warehousing,  &c. 

The  v.hole  doctrine  of  general  average  is  based  on  the  theory  of 
the  substitution  of  a  lesser  loss  (the  sacrifice)  for  a  probable  greater 
(accidental)  loss.  In  the  case  of  the  substituted  expenses  the  lesser 
loss  equally  takes  the  place  of  a  larger  loss  which  would  have  been 
general  average,  if  incurred.     On  the  principles  of  equity,  which 


(p)  Boicrhig  v.  Thcbaud,  42  Fed.  at  p.  796. 
[q)  Goodwillie  v.  McCarthy  (1867),  45  111.  186. 
()•)  Ante,  p.  736. 
(s)  Ante,  p.  757. 


LAW  OF  TPIE  UNITED  STATES  OF  AMERICA.  759 

the  Courts  have  ever  recognised  as  underlying'  the  doctrine  of  general 
average,  the  substituted  expenses  in  such  circumstances  should  be 
general  average.  If  it  also  saves  expenditures  other  than  those 
Avhich  would  be  general  average,  it  should  necessarily  be  apportioned 
on  the  basis  of  the  expenditure  saved. 

The  injustice  of  the  rule  laid  down  in  the  Hugg  case  is  more 
apparent  in  the  event  of  a  transhipment,  under  the  same  circum- 
stances, of  part  of  the  cargo  of  a  ship  loaded  with  general  cargo  on 
which  the  freight  is  all  prepaid.  The  result  of  the  master's  selec- 
tion of  the  cargo  to  be  transhipped  for  the  general  benefit  would  be 
tliat  under  this  rule  the  owners  of  the  cargo  selected  would  pay  the 
expenses,  and  the  OAviiers  of  other  cargo  would  avoid  them. 

In  this  connection  it  is  interesting  to  note  that  in  a  case  of  volun- 
tary stranding  (t)  the  jury  were  charged,  among  other  things,  that 
if  it  were  found  that  the  master's  act  was  to  save  the  ship  and  cargo 
from  the  increased  expense  of  raising  the  ship  in  deep  water,  the 
act  was  general  average.  The  Court's  charge  was  approved  by  the 
United  States  Supreme  Court. 

The  question  has  never  been  considered  by  any  of  the  Federal 
Appellate  Courts,  but  I  feel  quite  confident  that,  when  it  is  con- 
sidered, substituted  expenses  will  be  recognized  as  general  average, 
when  the  expenses  saved  would  be  general  average.  An  analogous 
rule  of  damages,  in  another  branch  of  the  maritime  law,  has  been 
approved  by  the  Circuit  Court  of  Appeals  (m)  . 

In  practice  the  doctrine  of  the  Hugg  case  is  not  always  followed. 
I  have  known  of  several  cases  where,  in  order  to  float  a  stranded 
vessel,  cargo  has  been  discharged  into  lighters,  or  into  another  vessel, 
and,  to  save  the  heavier  expense  of  reloading,  the  lighters  or  vessel 
containing  the  discharged  cargo  have  taken  it  to  destination.  This 
expense  has  been  allowed  in  general  average  without  question  by 
the  parties  interested. 

Owing  to  the  present  luisettled  state  of  the  law  it  is  advisable 
to  obtain  the  agreement  of  the  parties  interested  before  adopting 
a  substituted  course.  This  frequently  causes  delays  and  expenses 
Avhich,  if  the  law  were  clear,  might  be  avoided.  I  might  say  that 
American  underwritei"S  readily  give  their  assent  to  such  procedure 
when  the  course  suggested  is  reasonable  and  beneficial  (iv). 

The  quarantine  dues  on  the  ship  are  general  average,  but  hospital  Hospital 
charges  for  sick  seamen  are  not  (x) .  "^ 

The  wages  and  provisions  of  the  crew  are  general  average  from  Wages  and 
the  time  of  deviation  for  the  port  of  distress  until  the  ship  sails  again  bearing  away 


&c. 


(0  Fowler  v.  liafhbotm,- 12  Wall.  102. 

(t()  Ronaldt  v.  Zeifcr,  109  Fed.  905. 

(w)  See  Shoe  v.  Craig,  ante,  Addendum. 

{s>)  Hathaway  v.  Sun  In?.  Co.  (1861),  8  Bosw.  33  ;  Gourlie,  240. 


"60 


APPENDIX  V. 


Wages  and 
keep  of 
cattlemen. 

Wages  and 
provisions  if 
voyage 
abandoned . 

While 
stranded. 


Scale  for 
allowance. 


York- 
Antwerp 
Rule  XI. 


on  the  voyage  (xx),  but  not  until  she  reaches  the  position  from 
which  she  deviated. 

The  wages  and  keep  of  cattlemen  not  on  the  ship's  articles  are  not 
in  practice  allowed  in  general  average. 

If  the  voyage  is  abandoned,  the  wages  and  provisions  are  general 
average  only  up  to  the  date  when  the  voyage  is  broken  up(?/). 

If  the  ship  is  accidentally  stranded,  the  wages  and  keep  of  the 
crew  during  the  detention  on  shore  are  not  as  such  the  subject  of 
general  average.  If  she  was  voluntarily  run  ashore  for  the  common 
safety,  the  crew's  wages  and  keep  during  the  det-ention  are  the  sub- 
ject of  general  average  (z).  If  the  vessel,  while  stranded,  becomes  a 
general  wreck  and  the  crew  are  retained  to  assist  in  saving  property, 
the  property  saved  must  contribute  to  the  wages  and  keep  of  the 
crew  (a). 

Gourlie  (b)  gives  a  scale  for  the  allowance  of  provisions. 

Eeeently,  our  Average  Adjusters'  Association,  after  full  inquiry, 
adopted  a  scale  which  in  practice  is  now  used(c). 

The  question  has  arisen  as  to  the  construction  of  York-Antwerp 
Rule  XI.,  which  deals  only  with  the  wages  and  maintenance  of  the 
crew  while  the  ship  is  detained  in  a  port  or  place,  and  does  not 
mention  the  period  between  the  time  of  deviation  and  arrival  at 
the  port  or  place.  It  has  been  contended  that,  as  the  United  States 
law  allows  the  wages  and  provisions  during  the  deviation,  by  virtue 
of  York- Antwerp  Rule  XVIII.  the  wages  during  that  period  should 
be  allowed.  The  better  opinion,  however,  is  that  Rule  XI.  is  in- 
tended to  deal  with  the  whole  subject  of  the  allowance  for  wages  and 
provisions  of  the  crew,  and  in  practice  no  allowance  is  made  during 
the  period  of  deviation. 


{xx)  Camphell  v.  AJknomac,  Bee,  124  ;  Fed.  Cas.  2350  ;  Star  of  Hope,  9  Wall.  203  ; 
Bubson  V.  Lord,  92  U.  S.  397  ;  Gourlie,  p.  294,  and  cases  cited. 

(y)  The  Joseph  Farivell,  31  Fed.  844  ;  GourUe,  312. 

{£)  Gourlie,  307,  and  cases  there  cited. 

(«)  Roberts  v.  The  Ocean  Star,  Fed.  Cas.  11908  ;  Bridge  v.  Niagara  Ins.  Co-:,  1  HaU, 
4G7. 

(A)  Pp.  599,  601. 

(c)  XII.  "Allowaijce  in  Respect  of  Peovisions. — When  allowance  is  made 
in  general  average  for  provisions  of  master,  officers  and  crew  the  allowance  shall 
be  on  the  following  scale : — 

Master   §1.00  per  day. 

Officers  and  Engineers    75    ,,     ,, 

Crew 50    ,,     ,, 

This  rule  shall  apply  to  the  Atlantic  Coast  ports  of  the  United  States  and  to 
ports  in  the  Gulf  of  Mexico." 

On  the  Pacific  Coast  the  scale  is :  — 

Master    $1.50  per  day. 

Officers  and  Engineers 75    ,,     ,, 

Craw 40    ,,     ,, 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  761 

111  practice,  the  wages  aud  provisions  of  the  members  of  the  crew   Wages  and 

wlio  are  solely  connected  with  the  passeug^er  department  are  not  P^'O'^'I'^iod^  "jf 

''  .  ^  crew,  pas- 

allowed  in  general  average.     In  applying  the  York-Antwerp  Rules  senger depart- 

they  are  allowed  on  the  ground  that  the  men  employed  in  the  passen-  "i^nt. 
ger  department  are  part  of  the  crew  and  that  the  rule  makes  no  dis- 
tinction. 

The  right  to  allowance  in  general  average  for  wages  and  pro-  Wheu  no 
visions  is  not  dependent  on  a  deviation.  A  voluntary  interruption  6'*^^*^°°- 
is  the  test.  Where  a  vessel  was  damaged  on  her  way  to  a  port  of 
call,  to  which  she  Avas  going  for  a  clearance,  and  was  necessarily 
detained  at  the  port  of  call  to  effect  repairs,  the  Court  held  that  the 
wages  and  provisions  during  the  detention  were  general  average  {d). 
The  same  conclusion  was  reached  where  a  vessel  was  detained  at 
sea,  while  constructing  a  jury  rudder  (e)  to  replace  one  sacrificed. 

Coal  and  engine  stores  used  up  in  bearing  away  for  a  port  of  Coal  aud 
distress,  and  while  there,  excepting  such  as  are  used  solely  in  conuec-  engine  stores, 
tion  with  repairs,  are  in  practice  treated  as  general  average.  There 
has  been  no  decision  of  our  Courts  dealing  with  this  subject,  but 
the  principle  governing  the  allowance  of  wages  aud  provisions  of  the 
crews  seems  applicable  to  the  coal  and  engine  stores,  and  I  have 
never  known  the  right  to  make  the  allowance  disputed.  Allowance 
is  also  made  when  the  York- Antwerp  Rules  govern  the  case. 

The  expenses  of  the  owners  sending  a  special  agent  to  a  port  of  Special  agent 
distress  are  general  average  when  such  procedure  is  reasonable  and  ^f  distress 
his  services  are  for  the  general  benefit  (/),  but  when  after  arrival 
the  special  agent's  services  are  largely  for  the  benefit  of  any  particu- 
lar interest,  such  as  looking  after  repairs  to  the  ship,  only  such  por- 
tion of  his  charge  as  applies  to  the  services  for  the  general  benefit 
are  general  average  (gf). 

In  practice  a  commission  of  2|  per  cent,  is  allowed  on  the  general  Coniniissiou 
average  disbursements  for  advancing  or  for  retiring  drafts  {h) .       ""   ^*  ^"^^^' 

Interest  is  allowed  on  the  general  average  disbursements  (?)  aud  interest 
allowances  (/c) .     This  interest  is  allowed  at  the  legal  rate  prevail- 
ing at  the  place  of  adjustment. 

The  Average  Adjusters  Association  have  a  rule  dealing  with  this 
subject  (l). 


id)  Hobson  V.  Lord,  92  U.  S.  397. 

(f)  May  V.   Keystone  Yellow  Pine  Co.,    117  Fed.  287.      See  contra.    Brig   Mary, 
1  Sprague,  51  ;  Fed.  Cases,  9188. 
(/)  Ilohson  V.  Lord,  92  U.  S.  397. 

{g)  Besse  v.  Uecht,  85  Fed.  677  ;   The  Eliza  Lines,  102  Fed.  184. 
{h)  Gourlie,  p.  429. 
(»)  Sims  V.  Willing,  8  Ser.  &  R.  103. 
(A)  Brig  Mary,  1  Sprague,  17. 
[T)  Rule  II.     Where  allowances,  sacrifices,  or  expenditures  are  charged  or  made 


762  APPENDIX  V. 

On  the  Great  Lakes  a  distinction  is  made  by  some  adjusters  and 
underwriters  as  regards  the  allowance  of  commission  on  disburse- 
ments and  the  commission  for  collecting  and  settling  the  general 
average.  Where  the  vessel  has  what  is  termed  on  the  Lakes  a 
package  cargo  (general  cargo),  the  allowance  is  made.  Where  she 
has  a  bulk  cargo,  such  as  ore  or  grain,  no  allowance  whatever  is 
made.  This  distinction  is  clearly  unwarranted.  The  principles  of 
general  average  and  the  method  of  adjustment  cannot  be  affected 
by  the  nature  of  the  cargo,  or  the  question  as  to  how  many  are 
going  to  contribute.  The  charge  of  commission  for  collecting  and 
settling  the  general  average  {m)  is  now  so  well  established  as  a 
matter  of  law,  that  the  subject  is  no  longer  open  for  discussion. 


Cost  of  Raising  Funds. 

In  case  the  master  of  a  vessel  is  not  supplied  with  funds  suffi- 
cient to  defray  the  expenses  at  a  port  of  distress,  or  on  application 
to  the  owners  of  the  vessel  or  cargo  obtains  no  relief,  and  raises 
the  funds  by  a  bottomry  or  respondentia  bond,  or  as  a  last  resort 
sells  a  portion  of  the  cargo,  then  the  interest  required  for  the 
forced  loan,  Avith  other  charges,  such  as  exchange,  commissions,  &c., 
or  the  loss  resulting  from  the  sale  of  the  cargo,  is  apportioned  under 
the  name  of  Cost  of  Funds,  pro  rata,  over  the  different  items  of 
disbursement;  and  such  proportion  as  falls  on  the  general  average 
charges  is  included  in  the  contribution  (w) . 

As  these  cases  are  now  of  so  rare  occurrence,  I  do  not  consider 
it  necessary  in  this  summary  to  deal  with  the  law  governing  the 
master's  right  to  raise  funds  under  bottomry  or  respondentia,  or 
to  sell  cargo  for  that  purpose.  Since  the  last  edition  of  this  book 
there  has  been  no  decision  in  the  United  States  Courts  in  which  there 
is  any  important  change  in  the  law  on  these  subjects.  There  is,  how- 
ever, one  decision  of  the  United  States  Supreme  Court,  which  I  deem 
worthy  of  mention. 

The  holder  of  a  bottomry  bond  on  vessel  and  cargo,  given 
to  cover  the  expenses  incurred  at  a  port  of  distress,  largely 
for  the  repair  of  the  ship,  proceeded  against  the  cargo  for  the 
imcollected  balance,  after  seizure  and  sale  of  the  vessel.  The 
Court,    in    its    judgment,    exhaustively    considered    the    right    of 


good  in  general  average,  interest  shall  be  allowed  thereon  at  the  legal  rate  pre- 
vailing at  the  place  of  adjustment. 

()«)  Barnard  V.  Adams,  10  How.  270  ;  Stnrgess  v.  Cari/,  2  Curt.  59. 

(«)  Gourlie,  p.  357,  and  cases  there  cited. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 

the  master  to  pledge  the  cargo  for  expenses  for  the  ship's 
benefit,  when  a  cheaper  course  could  have  been  adopted  by  forward- 
ing- the  cargo  to  destination;  and  emphasized  the  salutary  rule  that 
the  master  cannot  sacrifice  the  cargo's  interest  for  the  ship's  bene- 
fit, and  declared  the  bond  invalid  so  far  as  concerned  the  cargo  (o). 


Adjustment:  Place  and  Time  or. 

Ap])arently,  the  law  as  to  the  place  and  time  of  adjustment  is 
the  same  as  it  is  in  England;  that  is  to  say,  ordinarily,  when  the 
voyage  is  completed,  the  port  of  destination  is  the  proper  place, 
and  the  adjustment  should  be  prepared  as  soon  as  possible  after  tlie 
completion  of  the  voyage  (p).  In  speaking  of  the  place  of  adjust- 
ment, I  refer  to  the  law  and  rules  which  should  govern  it,  as  it  is 
immaterial  where  the  adjustment  is  made  if  it  is  made  promptly 
and  conforms  to  the  laws  and  rules  of  the  port  of  destination  when 
the  voyage  is  completed,  and  is  issued  in  the  language  prevailing- 
there.  It  may  be  of  interest  to  note  that  a  few  years  ago  several 
average  statements  on  Italian  steamers,  bound  to  this  country,  were 
prepared  in  Italy  and  issued  in  the  Italian  language  and  sent  here 
for  collection,  but  the  cargo  interests  declined  to  consider  them  until 
the  shipowners  had  them  translated  into  English.  Ordinarily,  when 
the  V03'age  is  completed,  and  there  are  competent  adjusters  at  the 
port  of  destination,  it  is  more  convenient  to  have  the  statement 
actually  prepared  there,  because,  obviously,  the  adjuster  at  that  place 
is  more  familiar  with  the  law  and  practice  of  his  own  country  than 
another  elsewhere  would  be. 

Where  the  voyage  is  broken  up  at  an  intermediate  port,  and  the   Where 

carffo  is  either  sold  or  delivered  to  its  owners,  it  has  been  decided   l^^^S^  ^^ 
°  .        broken  up. 

that  the  general  average  is  governed  by  the  law  shown  to  exist 
there  (g),  but  under  the  same  circumstances,  if  tlae  foreign  law  is 
not  proven  in  Court,  our  Courts  mil  apply  our  own  law  and 
usages  (r). 

If  a  vessel  is  condemned  at  a  port  of  refug-e,  and  the  master  or 
owners  forward  the  cargo  to  destination,  collect  freight  and  obtain 


(o)   T/ie  Julia  Blake,  107  U.  S.  418. 

{']])  Feters  v.  Warren  Ins.  Co.,  3  Sumner,  393;  S.  C.  ;  Strong  \.  Fireman^s  Ins. 
Co.,  11  Johns.  323  ;  Barnard  v.  Adams,  10  Howard,  270. 

[q)  National  Board  of  Marine  Undenvriters  v.  3Ickhers,  4o  Fed.  643  ;  Thr  Eliza 
Lines,  102  Fed.  184. 

[r)   Olivari  v.  Thames  and  Mersey  Marine  Ins.  Co.,  45  Fed.  894. 


763 


7H4  APPENDIX  V. 

average  security  at  destination,  the  law  of  the  place  of  destination 
must  govern  the  general  average  statement  (s) . 
Ship  with  When  a  ship  has  cargo  for  two  or  more  ports  in  different  coun- 

more  than         tries  or  with  different    laws  of    average,  the    case    presents    some 
one  port.  difficulty,  and    here,  as    in    England,  there    are    no    decisions    to 

indicate  Avhat  law  should  govern.  Some  authorities  argue  for  the 
first  port  and  others  for  the  last.  In  this  country,  the  owners  of 
cargo  for  the  first  port,  entitled  to  general  average  contribution, 
may  take  proceedings  at  that  port  against  the  ship  and  the  re- 
mainder of  the  cargo  for  contribution,  and  can  obtain  security  before 
the  vessel  resumes  her  voyage.  In  such  case,  the  law  of  the  first  port 
would  bo  applied,  and  on  the  vessel's  arrival  at  the  final  port  in  this 
country,  our  Courts  by  comity  would  recognize  the  judgment  of  the 
other  Court;  but  where  such  proceedings  are  not  taken  at  the  inter- 
mediate port,  the  Aveight  of  opinion  is  that  the  law  of  the  respective 
ports  should  be  applied  to  the  settlements  with  the  cargo  destined 
to  them. 

Take  for  instance,  the  case  of  a  vessel  bound  first  to  a  French 
port  and  afterwards  to  a  United  States  port ;  it  does  not  seem  reason- 
able that,  because  the  shipowner  had  the  liberty  or  option  of  stopping 
at  the  French  port,  this  fact  should  operate  to  cast  the  burden  of  a 
French  adjustment  on  an  American  consignee.  The  liberty  in  the 
bill  of  lading  to  stop  at  the  way  port  was  simply  an  option  for  the 
ship's  benefit  and  to  relieve  it  from  liability  for  deviation,  and  it  is 
unreasonable  to  construe  such  liberty  as  changing  the  voyage  con- 
tracted for  into  a  series  of  independent  voyages  so  as  to  alter  the 
law  of  the  contract  as  respects  general  average,  a  wholly  independent 
subject.  It  is  argued  that  after  the  vessel  delivers  her  cargo  at  the 
first  port  the  values  may  change  because  of  another  accident.  As  a 
protection  against  such  an  occurrence,  the  shipowner,  who,  so  far  as 
concerns  the  cargo  for  the  last  port,  has  exercised  the  option  of  going 
into  the  first  port  for  his  own  benefit,  may  take  out  insurance  against 
an  increase  of  contribution  arising  from  diminution  of  values 
by  a  subsequent  accident,  and  such  insurance  is  now  quite  customary 
in  the  United  States. 

In  1902,  in  the  case  of  the  French  steamer  Jeanne  Conseil  Avith 
cargo,  on  a  voyage  from  Bordeaux  to  St.  Pierre,  Miquelon  (French) 
and  New  York,  the  vessel  broke  her  shaft  and  was  towed  into  the 
Azores.  In  the  average  statement,  prepared  at  New  York,  the  St. 
Pierre  cargo  was  assessed  general  average  on  the  basis  of  the  French 
law,  and  tlie  New  York  cargo  on  the  basis  of  New  York  law,  which 


(«)  Barnard  v.  Adams,   10  How.   ;!07,  U.  S.   Sup.   Ct.  ;   McLoon  v.  Cummiugs,   75 
Pcnn.  S.  T.  Rep.  98  ;  Bradley  v.  Cargo  of  Lumber,  29  Fed.  648. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  ^•^•^ 

was  the  method  adopted  iii  a  case  meutioued  by  Lowndes  (t).  The 
question  as  to  the  correctness  of  this  procedure  was  submitted  ta 
leading-  counsel  (two  former  Judges  of  the  United  States  District 
Court  at  New  York)  who  approved  the  metliod  adopted. 

On  account  of  the  differences  over  this  question,  many  steamship 
lines,  when  vessels  are  bound  to  various  ports,  now  provide  in  their 
bills  of  lading  that  the  average  statement  shall  be  made  in  accordance 
with  the  laws  and  customs  of  the  port  of  shipment. 

Adjustment. 

General  Principles  Goverimig  Allowances  and  Contributory 

Yalues. 

The  principles  governing  the  allowances  in  general  average  and 
the  contributory  values  are  the  same,  tlie  theory  being  that  the  one 
whose  property  is  sacrificed  shall  be  placed  in  exactly  the  same 
position  as  he  would  be  in  if  the  property  of  another  had  been 
selected  for  the  sacrifice,  and  it  is  for  this  reason  that  amounts  made 
good  in  general  average  contribute  to  general  average.  As  Gourlie 
states  (m):  — 

"  General  average  contribution  seeks  to  restore  to  one 

whose  property  has  been  sacrificed  for  the  common  good 

that  which  has  been  so  lost  to  him." 
This  statement  is  subject  to  limitations;  such  as,  for  instance, 
the  non-allowance  of  deckload  jettison  when  it  was  not  carried  in 
accordance  Avith  the  custom  of  the  trade,  although  it  was  sacrificed 
for  the  common  good.  In  determining  the  value  to  be  made  good, 
the  element  of  peril  existing  at  the  time  of  sacrifice  is  not  considered, 
for  the  reason  that  the  same  peril  and  the  chances  of  safety  equally 
existed  for  the  rest  of  the  adventure  (x) . 

Amounts  to  he  Made  Good. 
The  practice  in  the  United  States  in  respect  to  this  is  the  same  as  Deduction  of 
when  Gourlie's  book  was  written.     Where  repair  is  made  by  tlie  np^fo^roid 
substitution  of  new  material,  one-third  is  deducted  as  representing 
the  betterment  that  the  ship  has  received.     This  deduction  is  made 
from  the  cost  of  labour  and  materials  employed  in  the  repairs,  fixim 
the  towages  to  and  from  dry  dock,  dry  dock  dues  and  all  the  inci- 
dental expenses  connected  with  the  repairs  other  than  surveys  (?/). 
The    deduction   is  also  made  even   if   the    ship    is  upon   her   first 
voyage  (2'). 

{I)  4th  edit.  274  ;  supra,  p.  316. 

(m)  p.  462. 

[x)  Gourlie,  465  ;  Rogers  v.  Mechanics  Ins.  Co.,  2  Story,  173. 

(«/)  Gourlie,  468,  and  cases  cited. 

{z)  Dunham  v.  Com.  Ins.  Co.  (1814),  11  Johns.  C.  315. 


7i'}6  APPENDIX  V. 

No  deduction  is  made  from  the  cost  of  straightening  bent  iron- 
work or  where  new  material  is  not  ased.  Neither  is  it  made  when 
articles  sacrificed  are  replaced  by  the  purchase  of  articles  that  are 
not  new,  nor  when  ropes  and  materials  sacrificed  are  perfectly  new; 
tliat  is,  when  taken  fresh  from  the  ship's  storehouse  and  sacrificed 
before  they  have  been  put  to  tlieir  ordinary  use.  In  practice  the 
same  deduction  is  made  in  the  case  of  iron  and  steel  vessels,  and  the 
injustice  of  this  is  quite  manifest,  and  has  been  frequently  com- 
mented upon.  Gourlie's  expectations  that  there  would  be  a  modifi- 
cation in  this  respect  have  not  yet  been  realized  (a).  The  legal  de- 
cisions on  this  subject  were  prior  to  the  advent  of  iron  and  steel 
vessels.  While  the  rule  is  arbitrary,  in  the  long  run  it  would  pro- 
bably work  justice  in  the  case  of  wooden  vessels,  but  it  does  not  do 
so  as  regards  iron  and  steel  vessels. 

A  good  illustration  of  the  unfairness  of  the  practice  at  present 
is  where  an  iron  or  steel  vessel  is  drydocked  on  account  of  voluntary 
stranding  damage,  and  some  of  her  bottom  plating  is  found  to  be 
bent,  and  is  straightened.     Under    those    circumstances,  the  entire 
cost  of  the  repairs  is  allowed  in  general  average  without  deduction. 
If,  however,  it  developed  that  the  plating  was    broken    and    had 
to  be  replaced  by  nev.-,  one-third  would  be  deducted  from  the  entire 
cost  of  the  repairs,  including  drydock  dues,  &c.,  although  the  cost 
of  the  new  material  was  very  much  less  than  the  thirds  deducted 
from  the  total  account.     Presumably,  the  ship  that  had  the  broken 
plates  was  the  more  seriously  damaged,  and  it  seems  an  absurdity 
that  in  that  instance  the  allowance  in  general  average  should  be  less 
than  that  made  in  the  case  of  the  ship  that  sustained  the  least 
damage,  viz.,  the  ship  with  the  bent  ironwork.     As  a  distinction 
has  always  been  recognized  in  regard  to  anchors  (b),  why  should  it 
not  be  made  in  the  case  of  iron  and  steel  vessels  ?    It  is  to  be  hoped 
that  the  practice  will  be  altered  in  this  respect. 
Dry  dock  If  the  repairs  are  of  both  a  general  and  particular  average  nature 

dues,  &c.  ^^^  ^^  £g  necessary  to  drydock  the  vessel  to  effect  same,  one-half  of 

the  cost  of  taking  the  vessel  to  and  from  drydock  in  the  port  of 
repair,  and  one-half  of  that  portion  of  the  drydock  dues  which  is 
common  to  both  classes  of  repairs,  are  in  practice  treated  as  general 
average. 
Credit  for  old       The  practice  of  deducting  a  credit  for  old  materials  before  the 
inatenals.         deduction  of  the  one-third  has  in  recent  years  been  changed.     The 
credit  is  now  made  after  the  deduction  of  the  one-third,  which  is 
correct  in  principle. 
Where  vessel        If,  after  the  voyage  has  been  completed,  the  ship  should  be  lost 
lost  after  before  the  sacrifices  have  been  replaced  or  repaired,  allowance  should 

completion  oi  r-  i  > 

{a)  P.  470. 

(b)  GourUe,  468. 


LAW  OP  THE  UNITED  STATES  OF  AMERICA.  767 

be  made  in  general  average  for  the  cost  of  replacing*  or  repairing  vojage  and 
the  sacrifices  on  the  basis  of  estimates.     Similarly,  allowance  should  rg^ia'-ed^  ^"^ 
be  made  for  damage  to  cargo  through  a  sacrifice,  although  the  cargo 
was  destroyed  after  delivery. 

The  allowance  for  cargo  sacrificed  and  the  contributing  value  of  Amount 
cargo  are  based  on  the  market  value  at  the  port  of  destination  at  cura-o 
the  time  of  arrival.     In  practice  the  value  is  taken  as  of  the  last  sacrificed. 
day  of  discharge.     It  has  been  argued  by  some  writers  that  it  should 
be  taken  as  of  the  first  day  of  discharge,  but,  as  the  community  of 
interest  between  ship  and  cargo  is  finally  separated  on  the  last  day, 
the  weight  of  reason  is  in  favour  of  that  date.     In  tliis  connection, 
it  is  well  to  remember  that  in  contribution  in  general  average  to 
salvage  expenses  no  preference  is  allowed  on  account  of  some  con- 
signments of  cargo  being  delivered  in  advance  of  others  (c) . 

If  goods  jettisoned  were  either  damaged  at  the  time,  or  certain  to  Deduction 
become  damaged  before  the  end  of  the  voyag-e  (as,  for  instance,  for^ima'^e'^ 
if  the  ship  after  being  relieved  by  jettison  was  subsequently  sunk  or 
filled  with  water,  and  it  is  certain  that  damage  would  have  been 
received  by  the  sacrificed  goods  had  they  not  been  sacrifi.ced),  only 
the  value  which  it  is  assumed  this  merchandise  would  have  produced 
if  it  had  not  been  jettisoned  and  had  stood  the  vicissitudes  of  the 
voyage,  is  to  be  allowed  (cZ).  In  this  event,  if  similar  goods  are 
damaged,  the  amount  allowed  for  the  sacrificed  goods  is  in  practice 
based  on  the  damaged  value  of  the  goods  tliat  arrive.  As  Gourlie 
states  (e),  "  The  claim  for  contribution  is  a  favoured  one,  and,  the 
cargo  being  sound  when  sacrificed,  no  mere  presumption  will  be 
allowed  to  destroy  the  owners'  right  to  an  indemnity  based  upon  a 
full,  sound  value;  but  the  nature  and  circumstances  of  the  damage 
may  be  such  that  the  extension  of  such  damage  to  the  sacrificed 
goods  had  they  remained  aboard  becomes  no  longer  presumption 
but  almost  a  question  of  certainty." 

Where  fruit,  or  other  perishable  cargo,  is  jettisoned,  and  at  the  Perishable 
time  of  its  jettison  is  in  good  condition,  but  if  it  had  not  been  jetti-  '''  ^°"' 
soned  it  would  certainly  have  become  worthless    before    it    could 
arrive  at  a  market,  no  allowance  is  made.     Such  cases  are  quite 
frequent  in  the  United  States  with  vessels  carrying  bananas. 

If,  after  jettison,  the  ship  returns  to  her  loading  port,  and  the  if  replaced  at 
jettisoned  goods  are  there  replaced,  the  loss  by  jettison  consists  of  li>ading  port, 
the  cost  of  replacing  the  goods  jettisoned.     That  sum,  therefore,  and 
not  the  market  value  at  destination,  should  be  made  good,  as  the 
loss  of  goods  has  thereby  been  converted  into  a  loss  of  money  (/). 


(c)  Seep.  739.  {d)  Gouilie,  p.  480. 

(c)  P.  481.  (/)  Gourlie,  480. 


7G8  APPENDIX  V. 

No  allow-  "When  cargo  is  damaged  by  water  poured  into  the  hold  to  extiu- 

nackaees  ou      gi^iish  a  fire,  allowance  is  made  for  the  damage  to  those  packages 
fire  when  only  which  were  untouched  by  fire  at  the  time  the  water  was  thrown 

wette  .  yjj^  them(f7).     If  the  goods  damaged  by  water  were  also  damaged 

by  smoke  deduction  is  made  for  the  latter. 
Nor  when  Where  the  goods  on  fire  are  thrown  overboard  no  allowance  is 

je  isone  .        made  for  them  (h),  but  burnt  packages  which  are  no  longer  on  fire, 

are,  if  jettisoned,  allowed  for  at  their  estimated  value. 
Freight  when       jj-*  ^]-^q  freight  is  absolutely  prepaid,  or  the  cargo  is  obligated  to 
cludsd  in  pay  it  in  any  event,  the  freight  is  included  in  the  amount  allowed  for 

value  of  tj^Q  goods  sacrificed  (i). 

AUow'ance  for       Contribution  is  made  for  freight  lost  as  a  consequence  of  a  general 
freight.  average  sacrifice  (fc) . 

No  allowance  is  made  for  freight  on  cargo  sacrificed  if  it  be  a 
fact  that  even  if  the  sacrifice  had  not  been  made  the  voyage  could  not 
have  been  completed  and  the  freight  earned.  Otherwise  the  ship- 
owner would  be  a  gainer  by  the  sacrifice.  If  the  cargo  sacrificed 
could  have  been  forwarded  to  destination,  and  the  cost  of  forwarding 
would  have  been  less  than  the  original  freight,  the  allowance  in 
general  average  is  for  that  difference. 

If   after    jettison  or  sacrifice  of    cargo    the  vessel   engages    new 

cargo  and  fills  the  empty  space  created  by  the  sacrifice,  and  completes 

the  vovao-e  she  was  then  on,  the  net  freight  received  on  the  new 

cargo,  after  deducting  the  expenses  of  engaging  and  loading,  is  a 

credit  against  the  allowance  for  freight  on  the  cargo  sacrificed,  but 

if  the  voyage  is  abandoned  no  credit  is  made  on  account  of  the 

earnings  of  the  next  voyage. 

Biisis  of  The  allowance  for  freight  on  cargo  sacrificed  is  based  on  the  bill 

allowance  for    of  ladino-  rate,  or,  if  a  bill  of  lading  be  not  issued,  on  the  rate 

°    '  as  per  charter.    It  was  the  custom  formerly  to  allow  the  gTOSs  freight, 

without  any  deduction  for  the  expense  of  earning  it,  although  the 

contributory  value  of  freight  to  general  average  was  based  on  a 

proportionate  part  of  the  freight.     The  propriety  of  making  the 

allowance  on  the  basis  of  the  gross  freight  was  litigated  in  several 

cases,  but  the  Court  felt  bound  by  the  custom  or  usage  (Z).     The 


iff)  Nimich  v.  Bolmes,  25  Penn.  St.  R.  366  ;  NeUon  v.  Belmont,  12  N.  Y.  Sup.  Ct. 
310  ;  Gourlie,  p.  -IS'i. 

{h)  Slater  v.  Hayward  Rubber  Co.,  26  Ct.  128  ;  Lee  v.  Grinnell,  12  N.  Y.  Sup.  Ct.  ' 

400  ;  see  Gourlie,  p.  155. 

(i)  Gourlie,  p.  488  ;  Maldonado  v.  B.  ^  F.  Mar.  Im.  Co.,  182  Fed.  784. 

{k)  Kaihl.  Hooper,  3  Sumner,  543 ;  Mutual  Ins.    Co.  r.  Cargo  Brig  George,  Olcott, 
89. 

{l)  Nalhl.  Hooper,   3  Sumner,  542  ;   Columbian  Ins.  Co.  t.  Ashby,  13  Peters,  331 ; 
Mutual  Ins.  Co.  v.  Cargo  Brig  George,  Olcott,  89. 


i 


aoveniinor. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  769 

unfairness  of  the  usag-e  was,  however,  manifest,  and  finally,  in  the 
case  of  Christal  v.  Flint  (m),  the  Court  approved  the  allowance  of 
gross  freight  as  being  in  accordance  with  the  usage  and  after  point- 
ing out  the  inequity  of  the  practice,  expressed  the  opinion  that  this 
usage  of  adjusters  should  be  altered.  The  result  of  this  intimation 
from  the  Court  was  the  adoption  of  a  rule  by  the  Average  Adjusters 
Association  of  the  United  States  (n). 

Interest    is  allowed    in    general    average  on  all    allowances  and  Iut;erest  on 

cargo  sacii - 
disbursements  (o).  fieed. 

Contributory  Values. 

The  sacrifice  is  to  be  made  good  by  the  different  interests  in  pro-  Principle 
portion  to  the  share  of  each  in  the  adventure. 

As  a  matter  of  principle,  the  true  contributory  value  of  any  in- 
terest is  the  value  saved  by  the  sacrifice;  that  is,  the  property  must 
contribute  according  to  its  value  at  the  time  and  place  at  which  the 
contribution  becomes  due.  '  Contribution  for  loss  by  jettison  or  other 
sacrifice  is  contingent  upon  something  finally  coming  to  the  vise  and 
within  the  control  of  the  owner,  not  merely  by  the  temporary  success 
attained  by  the  act,  but  by  the  ultimate  possession  of  the  pro- 
perty (^). 

I  dissent  from  the  statement  of  Gourlie  that  "expenditures  are 
due  absolutely,  regardless  of  the  subsequent  fate  of  the  interests  for 
whose  benefit  they  were  made  "  (q),  and  have  already  expressed  my 
conclusions  on  this  subject  (r). 

The  authorities  cited  by  Gourlie  for  the  proposition  quoted  are 
Spafford  v.  Dodge  (s),  and  Douglas  v.  Moody  (t).  In  both  these 
cases  contribution  Avas  sought  in  respect  of  expenses  incurred  in 
obtaining  the  release  of  captured  vessels  and  cargoes. 

So  far  as  this  point  is  concerned,  opinions  to  the  effect  above 
quoted  were  expressed  by  the  judges  who  wrote  the  judgments,  but 
since,  in  both  cases,  the  ships  and  the  cargoes  arrived  safely  at  des- 
tination, the  statements  obviously  are  merely  dicta.     In  neither  case 


(/«)  82  Fed.  472. 

(w)  Rule  IV.— Loss  op  Freight  on  Cargo  Saceificed. — "When  loss  of  freight 
on  cargo  sacrificed  is  allowed  in  general  average,  the  allowance  shall  be  for  the 
net  freight  lost,  to  be  ascertained  by  deducting  from  the  gross  freight  the  expenses 
that  would  have  been  incurred  subserxuent  to  the  sacrifice  to  earn  it. 

(o)  Ante,  p.  761. 

{p)  Gourlie,  p.  521  ;  Zee  v.  Grinnell,  12  N.  Y.  Sup.  Ct.  400  ;  Barnard  \.  Adams, 
10  How.  270,  370  ;   The  Star  of  Hope,  9  Wall.  235  ;  Hobson  v.  Lord,  92  U.  S.  397. 

[q)  Gourlie,  p.  521. 

(r)  Ante,  pp.  727—729. 

(s)  (1817),  14  Mass.  66. 

{t)  (1813),  9  Mass.  548. 

L.  3   I) 


770  APPENDIX  V. 

was  the  Court  called  upon  to  decide,  iior  did  it  decide,  that  contribu- 
tion for  expenditures  made  at  a  port  of  refuge  is  due  absolutely  in 
case  of  the  subsequent  total  loss  of  the  property.  So  far,  therefore, 
as  the  actual  decisions  in  these  cases  are  concerned,  they  are  not 
authority  for  the  proposition  that  any  greater  liability  exists  to 
contribute  for  extraordinary  expenditures  than  for  sacrifices. 

The  case  of  Spafford  v.  Dodge  no  doubt  did  decide  the  point 
stated  by  Gourlie  that,  "legally,  then,  there  are  two  rules  of  valua- 
tion, the  one  applicable  to  cases  of  expenditure,  the  other  to  sacri- 
fices of  property  "  (u),  but  the  ruling  in  Spafford  v.  Dodge,  and  the 
dictum  to  the  same  effect  in  Douglas  v.  Moody  (x),  that  contribution 
for  extraordinary  expenditure  should  be  made  on  the  basis  of  the 
values  at  the  port  of  expenditure,  are  at  variance  with  the  decisions 
in  the  State  of  New  York  and  in  the  Federal  Courts,  and  must,  there- 
fore, be  deemed  to  be  overruled  on  this  point  («/). 
Contributory  In  the  early  days,  in  some  of  the  states,  it  was  usual  to  take  as  the 
basis  of  the  ship's  value,  not  her  full  value,  but  some  fraction,  e.g.,  in 
New  York  State  four-fifths  (0).  This  sugg-^ests  the  continental  origin 
of  our  early  law.  Now,  however,  the  law  and  practice  is  that  the 
vessel  contributes  to  general  average  on  the  basis  of  its  value  upon 
arrival  at  the  port  of  discharge  in  its  then  condition. 

The  following  statement  of  Gourlie  fully  covers  the  subject  (a): — 

"  The  vessel  is  to  be  valued  upon  arrival  at  the  port 
of  discharge  in  her  then  condition. 

"  From  the  value  thus  ascertained  is  to  be  deducted  the 
cost  of  any  repairs  or  other  work  done  subsequent  to  the 
sacrifice  for  which  contribution  is  sought;  addition  then 
being  made  of  any  allowances  to  the  vessel  in  general 
average  for  sacrifices  of  ship's  material." 

Cargo.  When  cargo  is  delivered  at  destination  it  contributes  on  the  basis 

of  the  gross  wholesale  selling  market  value  in  its  landed  condition. 
From  that  value  is  deducted  the  freight,  if  it  is  not  absolutely  pre- 
paid or  must  be  paid  in  any  event,  and  the  landing  charges  and 
brokerage,  if  paid,  and  cash  discount,  if  any.  The  value  is  also 
diminished  by  any  special  charges  incurred  in  consequence  of 
damage.     The  value  of  the  cargo,  as  previously  explained  (6),  is 


(?<)  Crourlie,  p.  522. 
{x)  9  Mass.  548. 

(y)  lee  v.   Grinnell,  12  N.  Y.  Sup.  Ct.  400;  Barnard  v.  Adams,  10  How.  270; 
The  Star  of  Hope,  9  Wall.  235  ;  Hobson  v.  Lord,  92  TJ.  S.  397,  405—411. 
[z)  Leavenworth  v.  Bdafield  (1804),  1  Caines,  573. 
(a)  Gourlie,  pp.  522,  523. 
(*)  Ante,  p.  767. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  '^^  J- 

taken  as  of  the  last  date  of  discharge.     Sales  to  arrive  are  not  con- 
sidered (c). 

Where  the  voyage  is  broken  up  and  the  general  average  is  adjusted  Where 
as  of  the  port  of  refuge,  the  value  there  is  used,  and,  in  practice,  brokwi  up 
unless  the  cargo  is  sold  at  the  port  of  refuge,  it  is  assumed  to  be  the 
value  at  the  port  of  destination  less  the  cost  of  forwarding. 

Frequently  the  cargoes  of  regular  line  steamers  in  the  coasting  Coasting 

trade  consist  of  several  thousand  small  shipments,  which  merchan-  t^'V^^  ^^^ 

.  .     .     outward 

dise  is  not  intended  for  Avholesale  distribution.     In  such  cases  it  is  foreign 

the  custom  to  base  the  contribution  on  the  invoice  value,  including  ^'^J^S^^- 
prepaid  freight  and  shipping  charges,  if  any.     Where  the  goods 
are  staples,  such  as  cotton  and  lumber,  the  market  values  at  destina- 
tion are  readily  obtainable,  and  they  are  used. 

Many  averages  are  stated  in  America  on  vessels  bound  to  ports 
in  the  West  Indies,  .Central  and  South  America  and  the  Far  East, 
where  the  obtaining  of  accurate  market  values  is  difficult.  In  such 
cases  it  is  the  practice  to  assume  the  market  value  to  be  invoice 
value  plus  10  per  cent,  for  profit;  to  this  is  added  prepaid  freight 
and  shipping  charges.  If  the  goods  are  staples,  such  as  cotton,  sheet- 
ings, and  ca.se  oil,  market  values  are  obtainable  and  are  used.  If  the 
goods  are  manufactured  for  a  special  order,  such  as  machinery  and 
railroad  material,  invoice  value,  shipping  charges  and  prepaid  freight 
are  used  as  representing  the  actual  value,  and  this  practice  is 
generally  approved. 

The  rough-and-ready  practice  still  exists  of  deducting  from  the  Freight, 
freight  a  certain  percentage,  varying  in  the  different  states  (d),  to 
cover  such  expenses  of  earning  it  as  were  incurred  subsequent  to  the 
general  average  act.  This  practice  is  indefensible  on  any  principle 
of  general  average.  Gourlie  says  that,  while  it  cannot  be  regarded 
as  strictly  equitable,  it  certainly  has  the  merit  of  practicability  and 
convenience. 

It  is  our  daily  practice  to  calculate  the  contributory  value  of 
freight  under  the  York-Antwerp  Rules,  and  we  have  not  found  that 

(c)  Gourlie,  56 1. 

{cP)  Maine    one- third.  South  Carolina one-third. 

New  Hampshire    ,  , ,  Georgia one-half. 

Massachusetts    , ,  Florida , , 

Rhode  Island     , ,  Alabama     , , 

Connecticut    , ,  Louisiana    one-third. 


)  I 


New  York one-half.  Texas one-half. 

Pennsylvania     one-third.  California    , , 

Delaware    ,  ,,  Ohio     ,, 

Maryland    ,,  Illinois ,, 

Virginia one-half.  Michigan ,, 

North  Carolina ,,  Wisoon.sin    , , 

On  the  Great  Lakes  the  custom  is  to  deduct  one-half,  regardless  of  the  State  to 
"which  the  vessel  is  bound. 

3  d2 


772 


APPENDIX  V. 


Freight  pre- 
paid. 

Chartered 
freiprht. 


method  impracticable  or  inconvenient.  As  Lowndes  says  (e),  a  uni- 
form deduction  of  a  percentag-e  does  not  even  roughly  approximate  to 
a  correct  result.  The  sacrifice  might  happen  at  the  beginning  of 
the  voyage  when,  if  the  net  value  is  determined  scientifically,  there 
^ill  be  little  to  contribute;  or  at  the  end  of  the  voyage,  when  the  de- 
duction to  be  made  would  be  very  little.  Our  Courts  have  supported 
this  rule  solely  on  the  ground  of  its  being  the  usage.  It  is  to  be 
hoped  that  in  the  near  future  the  practice  will  be  chang'ed. 

Freight  contributes  to  general  average  on  the  basis  of  the  bill  of 
lading  freight  collectible  at  destination  on  cargo  on  board  at  the 
time  of  the  general  average  act.  In  the  absence  of  any  provision  in 
the  bill  of  lading',  it  is  at  the  rate  as  per  charter-party. 

Freight  prepaid  absolutely,  or  payable  by  the  cargo,  in  any  event, 
contributes  in  the  value  of  the  cargo,  without  deduction  (/) . 

As  regards  chartered  freight,  we  are  no  farther  advanced  than  we 
were  at  the  time  of  Gourlie's  book. 

There  are  no  decisions  of  our  Courts  covering-  the  question  when 
the  vessel  is  under  charter  and  proceeding  in  ballast,  and  it  is  not 
the  practice  in  those  circumstances  to  make  the  chartered  freight 
contribute  to  general  average,  differing"  in  this  respect  from  the 
law  in  England. 

In  1905,  a  proposed  rule  was  considered  by  our  Average  Ad- 
justers Association,  which  provided  tiiat  the  chartered  freight  was 
to  contribute  when  the  vessel  was  in  ballast,  but  after  a  full  discus- 
sion the  ]pi'oposed  rule  was  unanimously  voted  down. 

The  case  of  the  Brig  Mary  (g)  is  often  mentioned  as  autliority  for 
the  contribution,  but  I  think  it  is  readily  distinguished  from  the  case 
of  a  vessel  in  ballast.  In  the  ease  of  The  Mary,  the  vessel  was  char- 
tered for  a  round  voyage  and  carried  cargo  out  and  home,  and  the 
payment  of  freight  was  predicated  on  the  return  to  the  home  port, 
being  to  all  intents  and  purposes  the  same  form  of  charter  as  is  now 
frequently  employed  by  which  a  vessel  for  a  fixed  lump  sum  carries 
cargo  to  various  ports,  the  lump  sum  being  paid  upon  the  discharge 
at  the  final  port,  in  which  event  if  a  general  average  had  arisen  at 
any  stage  of  the  voyage  where  cargo  is  on  board,  the  entire  freight 
would  contribute.  This  is  an  entirely  different  state  of  affairs  from 
that  where  the  vessel  is  in  ballast  and  the  charter  may  be  speculative, 
or,  through  the  exercise  of  some  option  in  the  charter-party  after 
the  general  average  had  arisen,  the  charter  may  never  be  entered 
upon  (h) . 


(e)  4th  ed.  p.  633. 

(/)  MalduHcido  V.  B.  i-  F.  Mar.  Ins.  Co.,  182  Fed.  744  ;  Gourlie,  p.  538. 

(ff)  1  Sprague,  17. 

{h)  The  reasons  underlying  the  American  practice  of  confining  the  contribution 


LAW  OF  THE  UNITED  STATES  OF  AMERICA.  773 

If  the  shipowner's  freight  is  less  tliaii  the  bill  of  lading  freight, 
for  convenience  in  stating  the  contributing  interests  the  bill  of  lading- 
freight  is  frequently  divided  between  shipowner  and  charterers. 

While  the  general  rule  is  that  amounts  made  good  contribute  to  Contribution 
general  average,  there  is  one  exception  in  regard  to  freight  which  '^^^^^^  ^"q^ 
is  -worth  mentioning.     In  stating  the  contributory  value  of  freiglit  to  freight, 
under  York-Antwerp  Rules,  it  is  the  practice  to  add  the  amount 
made  good  for  freight  to  the  amount  of  freight  collectible  at  destina- 
tion, and  then  to  deduct  the  Avages,  port  charges,  &c.     The  result 
in  some  instances  is  that  where  the  vessel  is  making  an  expensive 
voyag-e  "with  a  small  freight  list  the  expenses  deducted  exceed  the 
freight  collectible  and  the  amount  made  good,  and  there  is  no  con- 
tribution.    The  reason  for  this  is  that  if  the  amount  made  good 
contributed  regardless  of  the  deduction  for  expenses,  the  shipowner 
would  not  be  in  as  good  a  position  as  he  would  have  been  if  the 
property  of  another  had  been  sacrificed. 

Passage  money  does  not  in  practice  contribute  to  general  average  Passage 
for   the   reason   that  it  is   prepaid.     There  are  no  decisions  in  the  ™-^^^y- 
United  States  on  the  subject. 

Merchandise  or  stores,  the  property  of  tire  Government,  contribute  Government 
to  general  average  the  same  as  does  other  cargo  (i).  prope  y. 

When  there  are  two  general  averages  on  the  same  voyage  the  prae-  When  two 
tice  is  to  apportion  the  second  general  average  first  on  the  basis  of  .^ygrages 
the  arrived  values,  and  the  proportioiLS  of  general  average  thus  de-  on  same 
termined   are   deducted    from   the  contributory  values    of   the   first  ^'^y^^^- 
general  average. 

Remedy  and  Effect  of  Lien. 

A  claim  for  general  average  is  enforceable  in  equity  proceed- 
ings (fc),  or  by  a  siiit  in  persoymm  in  admiralty;  it  may  also  be 
enforced  at  common  law  when  the  proceeding  is  under  an  average 
bond  or  agreement  (Z). 

The  shipowner  has  a  lien  on  the  carg-o  for  general  average,  and 
the  owner  of  goods  sacrificed  has  a  lien  against  the  vessel  and  other 
interests  for  the  amount  due  liim;  both  liens  are  enforceable  in 
admiralty  {m). 


to  the  freight  on  the  cargo  on  board  are  fully  set  out  iu  the  Report  of  the  Associa- 
tion of  Average  Adjusters  of  the  United  States  for  1905. 

(i)    TJ.  S.  V.  Wilder,  3  Sumner,  308.     See  cases  cited  by  Goui-lie,  p.  582. 

[k)  Stnrgesa  v.  Cary,  2  Curt.  59  ;  MitchcU  Trans.  Co.  v.  rutlersoii,  22  Fed.  49  ; 
Dupo>tt  V.  Vuncf,  19  How.  162  ;  Bark  San  Fernando  v.  Jackson,  12  Fed.  3-11. 

(J)   Wellman  v.  Morse,  76  Fed.  573  ;  Maricick  v.  Rogers,  163  Mass.  50. 

(;«)  Ealli  v.  Troop,  157  U.  S.  at  p.  400;  Dapont  v.  Vance,  supra ;  Wellman  v. 
Morse,  supra. 


774  APPENDIX  V. 

The  lien  on  cargo  depends  upon  possession,  and  is  lost  by  de- 
livery to  its  owner,  or  consigiuee  i^n),  but  if  properly  reserved  it 
would  follow  the  goods  (oj. 
Average  The  questions  of  security  for  g-eiiieral  average,  right  of  lien,  and 

secunty.  ^j^g  master's  right  to  hold  the  cargo  pending  the  giving  of  proper 

security  were  exhaustively  considered,  with  a  full  review  of  tlie 
authorities,  by  the  Circuit  Court  of  Appeals  in  1896  in  the  case  of 
Welhnan  v.  Morse.    In  the  course  of  the  judgment  the  Court  said:  — 

"  With  reference  to  the  paj'ment  of  general  average 
the  owners  of  the  schooner  were,  according  to  strict  law, 
theoretically  entitled  to  receive  it  in  cash  before  surren- 
dering their  lien,  and  were  not  liolden  to  take  security 
for  it;  and  the  owners  of  the  cargo  were  likewise,  by  the 
same  strict  law,  entitled  theoretically  to  pay  in  money  in- 
stead of  giving  security.  Although,  according  to  strict  law, 
the  right  to  payment  of  general  averag-e  does  not,  perhaps, 
ahvays  await  a  dischargee  of  the  cargo  (Carv.  Carr.  by  Sea, 
426^428 ),  yet  no  Admiralty  Court  would  enforce  payment 
prior  to  an  opportunity  for  its  inspection  by  its  owner  for 
the  purpose  of  determining  its  contributory  value.  This, 
nevertheless,  would  not  prevent  the  filing  of  a  libel  in 
season  to  make  good  the  ,lien  if  it  became  necessary.  So 
that,  practically,  a  2)rior  discharg-e  of  the  cargo  is,  in  any 
event,  necessary  to  enable  the  owner  of  the  vessel  to  collect 
the  amount  due  for  general  averag-e.  It  was  on  this  ac- 
count well  said,  referring  to  payments  alike  for  freight 
and  general  average,  in  Abb.  Shipp.  (1 3th  ed.)  466,  as 
follows :  — 

"  '  The  master,  however,  cannot  detain  the  goods 
on  board  the  ship  until  these  payments  are  made,  as 
the  merchant  would  tlien  have  no  opportunity  of 
examining  their  condition.' 

"Also,  with  reference  to  general  average,  it  is  ex- 
pressly stated  in  Lown.  Gren.  Av.  (4th  ed.)  329,  that  if 
the  master  '  retains  the  goods  on  board  his  ship  he  can  claim 
no  demiu-rag-e  during  the  delaj-.'  All  the  authorities,  as 
well  as  the  reason  of  the  law  and  the  necessities  of  com- 
merce, are  to  fhe  same  effect.   .   .   . 

"  But  a  complete  disposition  of  the  case  requires  us 
to  come  somewhat  nearer  to  the  facts.     We  have  already 

(w)   The  Water  Witch's  Cargo,  29  Fed.  159. 
(o)    Wellman  v.  Morse,  sxpra. 


i 

I 


LAW  OF  THK  UNITED  STATES  OF  AMERICA.  775 

observed  that,  in  the  tlieory  of  the  law,  either  party  liad 
the  right  to  exact  a  cash  settlement  of  the  general 
average,  and  neither  was  holden,  on  the  one  side  to  give 
security,  or  on  the  other  to  accept  it.  Nevertheless,  the 
almost  universal  practice  is  for  the  master,  before 
delivering  the  goods,  to  take  an  average  bond,  and  for 
the  owners  of  the  ciargo  to  give  such  a  bond.  It  is  not 
necessary  to  enlarge  on  this.  The  reasons  for  it,  if  any 
one  deems  them  necessary  to  be  stated,  can  be  found  in 
Kay,  Shipm.  (2nd  ed.)  201;  Lown.  Gen.  Av.  (4th  ed.) 
336,  337;  Huth  v.  Lamport  (already  citedj,  16  Q.  B.  D. 
735,  736;  and  Svendsen  v.  Wallace  (already  cited),  10 
App.  Cas.  404,  410.  Indeed,  the  theoretical  remedy  of  a 
cash  settlement  is  so  impracticable  that  Lowndes  states, 
in  siibstance,  that  something  else  is  imperative.  He  says, 
indeed,  that  some  other  reasonable  arrangement  therefor 
'has  to  be  come  to.'  The  conditions  are  so  urgent,  and 
the  practice  of  giving  and  accej)ting  security  is  so  uni- 
versal, that  an  Admiralty  Court  would  look  with  disfavour, 
so  far  as  in  its  power  to  do  so,  on  any  owner,  either  of  a 
vessel  or  cargo,  who  refused  to  conform  to  it.   .   .   . 

"  First,  it  was  held  that,  inasmuch  as  the  parties  had 
Avaived  their  strict  rights  with  reference  to  immediate 
payment,  and  each  party  had  impliedly  consented  to  con- 
form to  the  usage  by  virtue  of  which  an  average  bond 
was  to  be  given  and  taken,  the  owner  of  the  vessel  was, 
in  the  eyes  of  the  law,  liable  for  refusing  an  average  bond 
in  a  reasonable  form,  and  insisting  that  it  shoiild  contain 
unreasonable  conditions.    .    .   . 

"On  the  other  hand,  it  is  evident,  reciprocally,  that  the 
master,  on  surrendering  his  lien,  is  entitled  to  demand 
security  of  an  effectual  character,  and  of  such  nature  as 
will  leave  open,  in  his  behalf,  all  legal  methods  of  deter- 
mining any  controversy  which  may  arise,  and  of 
promptly  enforcing  whatever  amount  the  result  of  such 
determination  may  show  he  is  entitled  to.  ^yllile,  on  the 
one  hand,  he  cannot  foreclose  any  questions  which  the 
owner  of  the  cargo  is  entitled  to  have  determined,  he,  on 
the  other,  is  not  required  to  weaken  his  position  substan- 
tially, or  to  surrender  any  methods  of  relief,  or  to  delay 
it,  except  so  far  as  the  same  may  be  unavoidable  in  view 
of  the  fact  that  he  gives  up  his  lien." 

According  to  invariable  custom  in  the  United  States,  before  the  ^o^m  of 
delivery  of  the  merchandise,  the  consignees  sign  an  average  bond  or  security 

obtainable. 


77-6  APPENDIX  V. 

agreement,  aud,  in  addition,  furnish  a  satisfactory  gaiarautee.  This 
guarantee  is  unlimited  and  is  an  absolute  obligation  to  pay  any  aver- 
age charges  for  which  the  particular  shipment  is  liable.  It  is  custo- 
mary to  accept  the  guarantee  of  underwriters  legally  doing  business 
in  the  United  States,  or  the  guarantee  of  bankers  or  other  satisfac- 
tory sureties. 
Deposits.  When  such  guarantees  are  not  available,  a  deposit  is  made  with 

the  trustees  named  in  the  average  bond,  who  are  usually  the  average 
adjusters. 

A  demand  for  a  deposit  cannot  be  legally  enforced  in  this  country, 
because  if  the  demand  is  made,  the  consignee,  by  a  writ  of  replevin, 
can  obtain  possession  of  his  merchandise  by  signing  a  bond  and 
giving  security  to  the  satisfaction  of  the  Court;  or,  if  the  master 
takes  action  in  Court  to  exercise  his  lien,  the  same  result  would  ensue. 

But  in  actual  practice,  where  it  is  not  convenient  to  give  a  guaran- 
tee, the  consignees  usually  prefer  to  make  the  deposit  rather  than 
to  resort  to  the  Court  procedure. 

The  deposits  taken  are  placed  in  trust  accounts  and  the  interest 
earned  on  them  is  credited  in  the  average  statement. 

When  the  shipowner  places  deposits  in  bank  with  his  general 
funds,  he  is  liable  for  interest  on  them  at  the  legal  rate,  which  in 
New  York  is  6  per  cent,  per  annum. 
Average  bond  The  form  of  average  bond  generally  in  use  in  the  United  States 
or  agreement,  contains  a  brief  recital  of  the  alleged  facts  which  gave  rise  to  the 
general  average;  it  names  the  trustees,  and  also  the  average  ad- 
justers who  are  to  prepare  the  adjustment;  aud  the  parties  thereto 
agree  to  furnish  promptly  to  the  adjusters  such  information  as  the 
latter  may  require  in  preparing  the  statement;  it  also  provides  for 
payment  of  what  is  due  on  condition  that  the  statement  is  prepared 
in  accordance  with  established  laws  and  usages  in  similar  eases. 
The  execution  of  the  average  bond  in  no  way  prevents  the  cargo 
owner  from  contesting  his  liability  for  contribution,  nor  from  show- 
ing that  the  general  average  loss  occurred  by  reason  of  negligence  or 
of  unseaworthiness  of  the  vessel;  nor  does  it  prevent  him  from  in- 
quiring whether  the  rule  of  apportionment  adopted  was  in  accord- 
ance ^vith  maritime  law(2>). 

A  cesser  clause  in  a  charter  party  does  not  relieve  the  charterer, 
who  is  also  the  owner  of  the  cargo,  from  the  obligation  to  contribute. 
The  obligation  springs  from  the  law  itself,  and  not  from  any  con- 
tract (q). 

{p)  Conrad  v.  Monlcoiirt,  138  Mo.  311;  Berry  Coal  Co.  v.  Chicago,  ^-c.  R.  Co.,  116 
Mo.  App.  214;  Broad/iax  v.  Cheraw,  ^-c,  C.  R.  157  Pa.  St.  140;  L'Ameriqiie,  35 
Fed.  835  ;  McAndrews  v.  Thatcher,  supra  ;   WeUman  v.  Morse,  supra. 

[q)  Manvick  v.  Rogers,  163  Mass.  50. 


LAW  OF  THE  UNITED  STATES  OF  AMERICA. 


777 


Money  paid  voluntarily  upon  a  claim  for  general  average  cannot 
be  recovered  back(r).  It  is  otherwise  if  the  money  is  paid  under 
protest  to  the  master  tx)  obtain  possession  of  the  cargo  lield  on  an 
unfounded  claim  for  general  average  (s). 

A  statement  of  average  adjusters,  made  up  pursuant  to 
average  bonds,  is  not  conclusive  as  an  award  on  submission  to 
arbitrators  (t). 

The  duty  of  having  the  adjustment  made  promptly,  enforcing  D'jty  to  have 
payments  and  exercising  the  lien  to  secure  contributions  from  the  prepared ' 
cargo  before  its  delivery,  rests  upon  the  master,  or  the  owners  of  the 
vessel;  and  the  lien  must  be  exercised  not  only  for  the  protection 
of  the  vessel  but  of  the  other  property  entitled  to  contribution,  and 
the  master  or  the  owners  are  liable  for  neglect  of  this  duty  (u). 

The  Adjuster. 

As  Gourlie  observes  (x),  "  In  this  country,  as  in  England,  the 
a.verage  ladjuster  occupies  a  peculiar  and  anomalous  position." 
He  is  merely  an  expert,  invested  with  no  judicial  authority,  and  is 
appointed,  generally,  by  the  representatives  of  the  ship.  His  work 
is  subject  to  review  by  the  parties  interested,  and,  therefore,  his 
adjustment  is  not  conclusive. 

There  are,  however,  certain  points  of  difference  between  the  work 
of  the  average  adjuster  in  England  and  in  the  United  States. 
Usually,  in  this  country,  the  shipowner  regards  the  adjuster  as  his 
adviser  in  practically  all  matters  connected  with  the  accident.  He 
almost  invariably  communicates  with,  the  adjuster  promptly  on  re- 
ceipt of  particulars  of  the  accident;  he  requires  his  advice  in  matters 
of  salvage  assistance,  and  frequently  the  adjuster  negotiates  the  con- 
tract with  the  salvor  for  sending  assistance,  and,  later,  the  settlement 
of  the  salvor's  claim,  which  requires  him  to  take  statements  of  facts 
and  to  confer  with  underwriters  and  others  interested.  If  it  is  a  case 
involving  the  handling  of  cargo  damaged  by  a  sacrifice,  or  of  general 
sliipwreck,  the  owner  expects  the  adjuster  to  assume  the  full  respon- 
sibility for  the  handling  and  disposition  of  the  cargo,  and  the  proper 
distribution  of  the  proceeds.  The  adjuster  takes  the  average  security 
from  the  owners  and  underwriters  of  the  cargo,  and  acts  as  trustee 
under  the  average  bond  or  agreement.     He  collects  the  cargo  valua- 


{}•)  Martin  v.  The  Agathe,  71  Fed.  528  ;  Fhipps  v.  The  Nicamr,  44  Fed.  504. 

(s)  Chamberlain  v.  Meed,  13  Me.  357. 

[t)   The  Santa  Anna  3[aria,  49  Fed.  878  ;   The  Alpine,  23  Fed.  815. 

(m)  Bupont  V.  Vance,  19  How.  174  ;  Stronij  v.  N.  Y.  Fireman's  Ins.  Co.,  11  Johns. 
323;  The  Packet,  3  Mason,  261;  Gillelt  v.  Ellis,  11  111.  519  ;  The  Santa  Ana,  154 
Fed.  800. 

{x)  Page  422. 


778 


APPENDIX  V. 


Commissiou 
for  collecting 
and  settling 
general 
average. 


tious  and,  after  the  average  statement  is  completed,  has  the  burden 
of  making-  the  collections  and  the  responsibility  of  paying  out  the 
credit  balances  in  exchange  for  the  documents  of  title.  If  any  of  the 
features  of  the  case  involve  litigation  he  is  supposed  to  attend  to  and 
supervise  such  litig-ation. 

As  I  understand  it,  in  England  the  scope  of  the  adjuster's  work 
is  not  so  extensive. 

The  services  and  disbursements  of  average  adjusters,  rendered 
in  accordance  with  the  terms  of  an  average  bond,  or  agreement, 
ai*e  maritime  in  their  natui^  and  the  subject  of  proceedings  in 
admiralty  {y). 

A  commission  of  2^  per  cent,  is  allowed  on  the  total  of  the  general 
average  for  the  collection  and  settling  of  the  average  (e).  This  com- 
mission is  not  allowed  merely  as  a  matter  of  usage,  but  as  a  matter 
of  law  («) . 

As  the  collection  and  settlement  of  the  average  is  invariably  at- 
tended to  by  the  adjuster  he  receives  this  commis.sion.  If  the  ship's 
ag-ents  performed  the  service  they  would  be  entitled  to  it. 


Conclusion. 

In  writing  this  appendix  I  have  not  deemed  it  necessary  to  deal 
with  the  subjects  of  capture,  embargo',  or  ransom,  and  have  dealt 
with  bottomry  and  the  sale  of  cargo  to  raise  funds  in  only  a  very 
limited  way.  Cases  of  general  average  involving  these  questions  are 
now  ver}  rare,  and  there  has  been  no  change  in  our  law  regarding 
thorn  since  Gourlie's  work  was  is.sued. 


(y)   Coast  Wrecking  Co.  v.  Fhoenix  Ins.  Co.,  7  Fed.  236 ;   13  Fed.  127,  382. 
(z)  Barnard  v.  Adams,  10  How.  270  ;  Sturgess  v.  Cary,  2  Curt.  59. 
\a)  Sturgess  v.  Cary,  2  Curt.  382. 


THE  LAW  OF  URUGUAY.  779 


APPENDIX  W. 


THE  LAW  OF  URUGUAY. 

The  law  of  general  average  which  is  in  force  iu  Uruguay  is  contaiucd 
ill  Book  III.,  Title  XIV.  of  the  Codkjo  de  Comercio  of  1865.  It  may 
be  stated  generally  to  be  the  same,  in  language  and  substance,  as  that  of 
the  Argentine  Republic,  with  the  following  unimportant  differences:  — 

1.  The  numbering  of  the  Articles  is  not  the  same.  Arts.  1482— 
1505  of  the  Uruguayan  Code  correspond  to  Arts.  1312 — 1335  of  the 
Argentine;  Arts.  1506—1509  take  the  place  of  Arts.  1336,  1337  of 
the  Argentine;  Arts.  1510—1522  correspond  to  Arts.  1338—1350  of 
the  Argentine. 

2.  The  definition  of  average  in  Art.  1482  is  the  same  as  that  of  the 
former  Argentine  Code,  viz.:  "  Se  consideran  averkis  fodos  los  gastos 
estraordhmrios  que  se  hacen  durante  el  viaje  en  favor  del  buque  6  del 
cargamento  6  de  ambas  oos-as  juntamente ;  y  todos  los  danos  que 
sobrevienen  al  buque  6  a  la  carga,  desde  el  embarco  y  sallda  hasta  la 
llegada  y  descarga."  "  All  the  extraordinary  expenses  incurred  during 
the  voyage  for  the  benefit  of  the  ship  or  cargo,  or  of  both  conjointly; 
and  all  the  damages  suffered  by  the  ship  or  the  cargo,  from  the  time 
of  the  loading  and  departure  until  the  arrival  and  discharge,  are 
considered  averages." 

3.  The  23rd  section  of  Art.  1316  of  the  Argentine  Code,  re- 
ferring to  the  expense  of  quarantine,  is  not  found  in  Art.  1486  of  the 
Code  of  Uruguay.  On  the  other  hand,  the  following  passage  is  added 
at  the  end  of  §  1  of  Art.  1486:  "  Deben  tambien  oonsiderarse  co?no 
averia  gruesa  los  salarios  y  gastos  del  buque  detenido,  mientras  se 
hace  el  arreglo  del  rescate."  "The  wag-es  and  expenses  of  the  vessel 
detained,  during  the  settlement  of  the  ransom,  shall  likewise  be  con- 
sidered  general  average." 

4.  Art,  1317  of  the  Argentine  is  repeated  to  the  end  of  Art.  1487, 
and  there  is  the  following  addition:  "  Y  sus  cargamentos,  hasta  los 
cuales  habria  podido  llegar  el  luGendio,  teniendose  en  cuenta  h  dis- 
posicion  del  puerto  6  rada,  el  viento  que  hacia  entonces,  la  sifuacion  que 
ocupaba  cada  buque,  y  otras  circunstancias  del  caso."     "And  their 


780 


APPENDIX  W. 


cargoes,  so  far  as  the  same  might  have  suffered  from  the  fire,  regard 
being  had  to  the  situation  of  the  port  or  roadstead,  the  direction  of  the 
wind,  the  position  occupied  by  each  vessel,  and  other  circumstances  of 
the  case." 

5.  Art.  1489  of  the  Uruguayan  Code  contains  an  additional  .section, 
Ko.  7,  which  is  not  in  the  Argentine:  "Los  gastos  que  ocasione  y  los 
perjuicios  que  se  puedan  seguir  de  una  cuarantena."  "The  expenses 
occasioned  by,  and  the  losses  which  may  ensue  from,  a  quarantine." 

6.  In  Arts.  1494, 1495,  1497,  the  words  "  por  peritos  nomhrados  por  el 
Juez  conipetente,"  "by  experts  appointed  by  the  competent  judge," 
replace  ''por  (d-os)  peritos  arbitradores,"  in  Arts.  1324,  1325,  1327 
of  the  Argentine.  Further,  in  Art.  1494,  ''por  el  Juez  competente," 
"by  the  competent  judge,"  takes  the  place  of  "por  el  tribunal  de 
comercio  del  respectivo  distrito";  in  Art.  1495,  "  honor ario  de  los 
peritos,"'  "remuneration  of  the  experts,"  takes  the  place  of  "arbi- 
trage"; and  in  Art.  1496,  "  Juzgado,"  "Court,"  takes  the  place  of 
"'  tribunal." 

7.  The  following  is  the  text  of  Arts.  1506—1509:  — 

1506.  The  proof  of  the  losses  and 
expenses     which     constitute      the 


1506.  La  justificacion  de  las  per- 
didas  y  gastos  que  constituyan  la 
averia  comiin  se  practicara  a  soli- 
citud  del  capitan  y  con  citacion  de 
los  interesados  6 
que  hubiese  presentes 


consignatorios 


El  capitan,  dentro  de  las  veinti- 
cuatro  horas  del  arribo  del  buque, 
pre.sentara  al  juez  letrado  de  com- 
ercio escrito  de  protesta,  haciendo 
relacion  de  todo  lo  ocurrido  en  el 
viaje,  con  referenda  al  diario  de 
navegacion,  y  aceompanando  tes- 
timonio  de  las  diligencias  6  pro- 
testas  que  hubiese  hecho  en  otro 
puuto  de  arribada,  a  fin  de  que, 
ratificado  bajo  juramento,  declaren 
a  su  tenor,  el  piloto  y  dos  6  tres 
de  los  marineros  y  al  mismo  tiempo 
el  juez  uombre  peritos  que  presen- 
cien  la  apertura  de  las  escotillas  y 
reconozcan  su  estado  y  el  arrumaje 
de  la  carga,  informando  por  escrito 
sobre  lo  que  hubieren  observado. 


general  average  shall  be  made  on 
the  application  of  the  captain, 
after  the  citation  of  the  interested 
parties  or  consignees  who  may  be 
present. 

The  captain  shall  within  twenty- 
four  hours  after  the  ship's  arrival, 
deliver  a  written  protest  to  the 
commercial  judge,  containing  an 
account  of  all  that  has  occurred 
during  the  voyage,  referring  to  the 
log,  and  accompanied  by  testimony 
of  the  measures  taken  or  protests 
made  in  any  other  place  of  call, 
ratified  on  oath  by  the  mate  and 
two  or  three  of  the  marinei's,  so 
that  the  judge  can  at  the  same  time 
appoint  experts  to  be  present  at 
the  opening  of  the  hatches,  and 
take  note  of  their  condition  and  the 
stowage  of  the  cargo,  and  make 
a  written  report  of  what  they  have 
observed. 


THE  LAW  OF  URUGUAY. 


'81 


1507.  En  caso  de  que  las  partes 
no  se  arreglaran  amistosamente,  el 
justiprecio  del  buque,  carga,  per- 
didas  J  danos  6  gastos  de  la  averia 
se  verificara  por  peritos  que  el  juez 
nombre  en  virtuel  de  su  oficio 
judicial  y  con  arreglo  a  las  circun- 
stancias  de  cada  caso. 

1508.  Hecho  el  reconocimiento  v 
el  justiprecio  de  que  liablan  los 
dos  articulos  precedentes,  el  capi- 
tan  presentara  escrito  para  la  de- 
claracion  6  clasificacion  de  perdi- 
das  y  gastos  que  deban  compren- 
derse  en  averia  simple  6  gruesa, 
en  parrafos  numerados.  El  juez, 
eon  previa  audienci.a  de  los  inter- 
esados  6  consignatories,  deter- 
minera  lo  que  por  derecho  corre- 
sponda;  y  en  el  caso  de  estimar 
necesario  el  recibir  a  prueba  la 
causa  por  un  breve  termino  y  tan 
solo  por  via  de  instrucciou,  lo  pro- 
veera  asi,  debiendo  limitarse  la 
prueba  a  las  declaraciones  del 
capitan  y  tripulantes  y  a  recono- 
cimientos. 

Al  resolverse  por  el  juez  lo  que 
corresponda  sobre  la  declaracion  6 
clasificacion  de  averia,  nombrara  el 
perito  contador  que  deba  liquidar 
y  repartir  aquella. 
•  Esta  operacion  solo  sera  ejecu- 
tiva  desde  cj^ue  la  apruebe  el  juez, 
con  previa  audiencia  de  las  partes. 

La  obligacion  de  activar  su  cum- 
plimiento  incumbe  al  capitan,  que 
sera  responsable,  por  su  negli- 
gencia  6  morasidad,  hacia  los 
duefios  de  las  cosas  averiadas. 

En  ese  caso  y  en  el  de  omitcrse 
por  el  capitan  las  diligencias  de 


1507.  If  the  parties  do  not  come 
to  a  friendly  arrangement,  the 
valuation  of  the  ship,  cargo,  losses 
and  average  damage  or  expendi- 
tures shall  be  made  by  experts  ap- 
pointed by  the  judge  in  virtue  of 
his  judicial  office  and  with  regard 
to  the  circumstances  of  each  case. 

1508.  After  the  survey  and 
valuation  referi-ed  to  in  the  two 
preceding  articles,  the  captain  shall 
present  a  document  for  the  decla- 
ration and  classification  of  losses 
and  expenditures,  which  must  be 
set  out  as  simple  (particular)  or 
general  average,  in  numbered 
paragraphs.  The  judge,  after 
hearing  the  interested  parties,  or 
the  consignees,  shall  determine  ac- 
cording to  law;  and  in  case  he  con- 
siders it  necessary  to  postpone  the 
cause  for  a  short  time  for  further 
evidence,  by  way  of  examination 
only,  he  shall  do  so  limiting  the 
evidence  to  the  declarations  of  the 
captain  and  crew  and  to  surveys. 

The  judge,  having  determined 
the  declaration  and  clas.sification  of 
the  average,  shall  appoint  a 
skilled  accountant  to  collect  and 
distribute  it. 

This  measure  shall  only  be  exe- 
cutory when  the  judge  has  sanc- 
tioned it,  after  hearing  the  parties. 

The  obligation  to  carry  out  the 
same  falls  on  the  captain,  who 
shall  be  responsible  for  his  negli- 
gence or  delay  to  the  owners  of 
the  damaged  articles. 

In  this  case,  and  in  case  the  cap- 
tain neglects  to  take  the  measures 


■82 


APPENDIX  W. 


que  habla  el  presente  articulo, 
podian  promoverlas  los  cluenos  del 
buque  6  del  cargameuto,  6  cual- 
quiera  otra  persona  interesada,  sin 
perjuicio  de  la  responsabilidad  en 
que  incurra  el  capitan. 

1509.  Si  la  distribuciou  de  la 
averia  se  hiciere  en  pais  extranjero 
y  hubiere  conformidad  de  las 
partes  en  que  se  efeetue  ante  el 
Consul  de  la  Republica,  nombrara 
este  los  peritos  y  contador. 

En  defecto  de  Consul  de  la  Re- 
piiblica,  se  ocurrira  a  la  autoridad 
que  conozca  de  los  neg'ocios  mer- 
eantiles . 


sjiecified  in  this  article,  the  owners 
of  the  ship  or  cargo  or  any  other 
interested  party  can  do  so,  without 
prejudice  to  the  responsibility  in- 
curred by  the  captain. 


1509.  If  the  adjustment  of  the 
average  takes  place  in  a  foreign 
country,  and  the  parties  agree  that 
it  shall  be  made  before  the  Consul 
of  the  Republic,  he  shall  appoint 
the  experts  and  accountant. 

If  there  be  no  Consvd  of  the  Re- 
public, they  shall  apply  to  the 
authority  having  cognizance  of 
mercantile  matters . 


8.  The  second  and  fourth  paragraphs  of  Art.  1513  of  the 
Uruguayan  Code  differ  slightly  from  those  of  Art.  1341  of  the  Argen- 
tine. The  second  paragraph  of  Art.  1513  is:  ''Son  pagados  segun  la 
calidad  designada  en  el  conocimiento,  si  se  han  perdido  per  echazon." 
"  If  lost  by  jettison,  they  are  paid  for  according  to  the  quality  stated  in 
the  bill  of  lading."  ^The  fourth  paragraph  is:  "  Mediando  echazon, 
son  pagados  hajo  el  pie  de  su  valor  real."  "In  case  of  jettison,  they 
are  paid  for  at  their  real  value." 

9.  Art  1515  of  the  Uruguayan  Code  differs  from  Art.  1345  of  the 
Argentine,  as  it  begins,  "Si  en  una  misma  tormenta,  6  por  efecto  del 
mismo  avcidente  se  perdiere  el  buque,"  "  Should  the  ship  be  lost  in  the 
same  storm  or  in  consequence  of  the  same  accident,"  and  then  continues 
"no  obstante,  dc,"  word  for  word  as  the  latter;  thus  limiting  the  rule 
to  the  case  in  which  the  subsequent  loss  can  be  connected  with  the  same 
cause  of  danger  as  the  general  average  act. 


TiiL:  LAW  OF  VENEZUELA.  783 


APPENDIX  X. 


THE  LAW  OF  VENEZUELA. 

c6dIG0  be  COMERCIO  of  1904. 

Title  Yl. 

Section  I. — Of  Average. 

706.  Averages  comprise:  — 

Every  extraordinary  expenditure  incurred  for  the  preservation  of 
the  ship,  of  the  goods,  or  of  both;  and  all  damage  sustained  by  the 
ship  from  her  sailing  until  her  arrival;  or  by  the  goods  from  the  load- 
ing until  the  discharge  at  the  port  of  destination. 

Unless  there  be  an  agreement  to  the  contrary,  the  provisions  of  the 
following  articles  shall  be  folloAved  in  cases  of  aA'-erage. 

707.  Averages  are  of  two  classes:  general  or  common,  and  simjile  or 
particular. 

708.  General  or  common  average  comprises  all  damage  caused  in- 
tentionally, after  due  deliberation,  before  or  after  the  commencement 
of  the  voyage,  to  the  ship  and  her  cargo,  conjointly  or  separately,  for 
the  common  benefit,  to  save  them  from  a  peril  of  the  sea;  damage  con- 
sequent on  the  sacrifice;  and  expenditures  due  to  unforeseen  causes, 
incurred  for  the  common  benefit  at  the  times  and  in  the  manner  stated, 
such  as: — {\)  Sums  given  by  way  of  composition  to  ransom  the  shij) 
and  cargo;  (2)  articles  jettisoned  to  lighten  the  ship,  whether  they 
belong  to  the  cargo,  to  the  ship,  or  to  the  crew;  (3)  cables,  masts, 
anchors,  and  other  articles,  cut  away,  jettisoned,  or  abandoned  to  save 
the  ship;  (4;  damage  sustained  by  the  ship  or  cargo  by  reason  of  opera- 
tions undertaken  to  save  the  ship  or  the  cargo;  (5)  expenses  of  lighten- 
ing to  enable  the  ship  to  enter  any  port  or  roadstead,  in  consequence  of 
a  storm  or  pursuit  by  an  enemy;  (6)  expenses  incurred  to  refloat  a 
ship  which  lias  been  run  ashore  to  avoid  capture  or  total  loss; 
(7)  damage  sustained  by  the  ship  and  cargo  through  measures  taken  to 
extinguish  a  fire  on  board;  (8)  the  cost  of  curing  and  the  maintenance 
of  seamen  and  passengers  wounded  in  the  defence  of  the  ship;   the 


784  APPENDIX  X. 

wages  of  the  former  until  their  recovery,  and  indemnification  for  their 
injuries  if  they  should  have  been  maimed;  (9)  the  wages,  maintenance 
and  indemnification  for  the  ransom  of  members  of  the  crew  who,  while 
rendering  services  to  the  ship  or  her  cargo,  were  captured  or  detained 
by  the  enemy  or  by  pirates;  (10)  the  wages  and  maintenance  of  the 
cvew,  w'hile  the  ship,  after  the  commencement  of  the  voyage,  is  detained 
by  a  foreign  Power,  or  owing  to  a  war  which  broke  out  while  the  ship 
and  cargo  were  not  free  from  their  reciprocal  obligations;  (11)  the 
same  wages  and  board  for  the  period  during  which  the  ship  is  obliged 
to  remain  in  a  port  of  refug-e,  to  repair  damage  intentionally  caused 
for  the  common  benefit  of  all  the  interested  parties;  (12)  the  diminu- 
tion in  the  value  of  goods  necessarily  sold  at  a  port  of  refuge  at  low 
prices  for  the  repair  of  damage  to  the  ship,  sustained  through  some 
accident  classified  as  general  average;  (13)  pilotage,  and  other  ex- 
penses of  entering  and  leaving  a  port  of  refuge,  for  a  cause  which  must 
be  considered  general  average;  (14)  the  hire  of  warehouses  and  deposi- 
tories, in  which  the  goods  are  placed  which  cannot  be  kept  on  board 
during  the  repair  of  general  average  damage;  (15)  the  expenses  of 
an  unusual  quarantine,  not  foreseen  when  the  contract  of  affreight- 
ment was  made,  while  the  ship  and  cargo  are  detained  thereby,  includ- 
ing the  wages  and  maintenance  of  the  croAV. 

709.  Simple  or  particular  average  comprises  all  damage  and  de- 
preciation Avhich  are  not  intentionally  caused  for  the  common  benefit 
of  the  ship  and  cargo,  such  as: — (1)  Damage  sustained  by  the  goods 
through  inherent  vice,  storms,  seizure,  shipwreck,  and  stranding; 
(2)  expenses  incurred  to  save  them;  (3)  the  loss  of  cables,  anchors,  sails, 
masts,  or  rigging,  caused  by  a  storm  or  other  accident  of  the  sea; 
(4)  the  expenses  of  putting  into  i^ort  in  consequence  of  the  fortuitous 
loss  of  these  articles,  or  for  want  of  provisions,  or  to  repair  a  leak. 

710.  If  on  account  of  known  shoals  or  sandbanks  the  ship  cannot 
sail  from  her  port  of  departure  with  her  whole  cargo  on  board,  or  cannot 
reach  her  destination  ^vitliout  discharging  part  of  her  cargo  into 
lighters,  to  lighten  her,  the  expenses  of  such  operation  are  not  con- 
sidered average.  They  must  be  borne  by  the  ship,  unless  the  contrary 
is  stipulated  in  the  charterparty  or  the  bills  of  lading. 

711.  The  provisions  of  the  j) receding  articles  witli  regard  to  the 
classification  of  general  or  particular  average,  are  equally  applicable 
to  such  lighters,  and  the  articles  loaded  thereon. 

712.  If  during  the  transit  these  lighters,  or  the  goods  on  board  of 
them,  sustain  loss  or  damage,  deemed  to  be  general  average,  the  craft 
shall  bear  one-third  thereof,  and  the  goods  the  remaining  two-thirds, 
which  shall  be  apportioned  as  general  average  over  the  principal  ship, 
the  freight  and  the  whole  of  the  cargo. 


THE  LAW  OF  VENEZUELA.  785 

713.  Eeciprocally,  and  until  the  goods  laden  on  the  lig-htcrs  have 
been  discharged  at  the  place  of  tlieir  destination,  they  remain  in  a 
common  adventure  with  tlie  principal  ship  and  the  rest  of  the  cargo, 
and  contribute  to  general  average  which  tliose  may  sustain. 

714.  Damage  sustained  or  expenses  incurred  by  reason  of  interior 
defects  of  the  ship,  its  innavigability,  or  the  fault  or  negligence  of  the 
captain  or  crew,  are  not  considered  general  average,  even  though  in- 
curred intentionally,  after  due  deliberation,  for  the  benefit  of  the  ship. 

715.  Pilotage,  towage,  and  harbour  dues  are  not  average,  but 
ordinary  expenses  to  be  borne  by  the  ship. 

716.  A  claim  for  average  is  not  admissible,  unless  it  exceeds  one- 
hundredth  part  of  the  collective  value  of  the  ship  and  cargo,  for  general 
average,  or  of  the  damaged  article,  for  particular  average. 

Section  II. — Of  Jettison. 

717.  If  the  captain,  to  save  the  ship  in  case  of  a  storm  or  of  pursuit 
by  an  enemy,  considers  himself  obliged  to  jettison  any  goods  forming 
part  of  the  cargo,  break  any  part  of  the  ship  so  as  to  facilitate  the 
jettison,  cut  down  masts,  or  abandon  anchors,  he  shall  first  hold  a  con- 
sultation, and  take  the  opinions  of  the  principal  members  of  the  crew, 
and  of  the  parties  interested  in  the  cargo  who  may  be  present.  If  there 
be  a  difference  of  opinion,  that  of  the  captain  and  the  principal  members 
of  the  crew  shall  be  followed. 

718.  According  to  the  judgment  of  the  captain,  assisted  by  the  advice 
of  the  principal  members  of  the  crew,  the  least  necessary  articles,  the 
heaviest  and  least  valuable  shall  be  jettisoned  first:  afterwards  those 
nearest  to  the  upper  deck. 

719.  The  captain  shall,  as  soon  as  possible,  enter  in  tlie  log-book  a 
minute  of  the  consultation. 

The  said  entry  shall  contain: — The  reasons  for  the  consultation;  an 
account  of  the  articles  jettisoned  and  damaged,  with  such  particulars  as 
can  be  given;  the  signatures  of  those  taking  part  in  the  consultation, 
or  their  reasons  for  refusing  to  sign. 

720.  At  the  first  port  into  which  the  ship  puts,  the  captain  must, 
within  twenty-four  hours,  deliver  to  the  Commercial  Judge,  or  if  there 
be  none,  to  some  other  judge  of  the  place,  a  copy  of  the  said  entry, 
under  oath  that  tlie  statements  therein  are  true.  If  the  port  be  a 
foreign  one,  the  copy  shall  be  delivered  to,  and  tlie  oatli  taken  before  the 
Venezuelan  Consul,  or  if  there  be  none,  before  a  magistrate  of  the 
place. 

L.  3  E 


'86  APPENDIX  X. 


Section  III. — Of  General  Average  Contribution. 

721.  Contribution  in  common  to  general  average  shall  be  made  pro- 
portionately by  the  goods  saved,  and  tliose  lost  by  jettison  or  other 
measures  of  preservation,  and  one-half  of  the  ship  and  freight. 

The  contribution  shall  be  based  on  tlie  value  of  the  said  things  at  the 
place  of  discharge,  after  deduction  of  the  expenses  of  salvage. 

722.  The  wages  of  the  seamen  are  not  liable  to  contribute. 

723.  It  is  the  duty  of  the  captain  to  apply  at  the  place  of  discharge, 
before  the  authority  specified  in  Art.  720,  for  the  svirvey  and  valuation 
by  experts,  appointed  officially,  of  the  damage  and  losses  which  consti- 
tute the  general  average. 

724.  The  goods  jettisoned  shall  be  valued  at  the  market  price  in 
the  place  of  discharge,  according  to  the  quality  shown  by  the  bills  of 
lading  and  invoices,  if  there  be  any. 

725.  If  the  goods  should  prove  to  be  of  less  (sic)  value  than  is  stated 
in  the  bill  of  lading,  they  shall  contribute,  if  saved,  on  their  value;  if 
lost  or  damaged,  they  shall  be  contributed  for  according  to  the  quality 
stated  in  the  bill  of  lading. 

If  the  goods  should  prove  to  be  of  inferior  quality  to  that  stated  in. 
the  bill  of  lading,  they  shall  contribute,  if  saved,  according  to  the 
quality  stated  in  the  bill  of  lading;  and  if  they  have  been  lost  or 
damaged,  according  to  their  value. 

726.  The  apportionment  by  the  experts  of  the  general  average  losses 
and  damage,  shall  be  carried  into  effect  after  it  has  been  sanctioned  by 
the  judge  or  consul,  as  the  case  may  be. 

727.  Munitions  of  war,  provisions,  and  the  personal  effects  of  the 
captain  and  crew  do  not  contribute  to  general  average;  but  the  value 
of  the  same,  if  they  have  been  jettisoned,  is  made  good  by  contribution. 

728.  Goods  for  which  there  is  no  bill  of  lading  or  declaration  by 
the  captain  are  not  contributed  for,  if  jettisoned,  but  they  contribute 
if  saved. 

729.  Goods  laden  on  deck  are  not  contributed  for,  if  jettisoned  or 
damaged,  but  contribute,  if  saved.  This  provision  does  not  apply 
to  the  coasting  trade. 

730.  Goods  which  have  not  yet  been  embarked  on  the  pr(incipal 
ship,  nor  on  the  boats  or  barges  which  ought  to  transport  them  to  her, 
do  not  contribute  to  losses  sustained  by  the  ship  in  which  they  are  to 
be  carried. 


THE  LAW  OF  VENEZUELA.  787 

731.  If  the  ship  is  lost,  notwitlistanding-  the  jettison  of  part  of  the 
cargo  or  other  measures  taken  for  her  preservation,  the  obligation  to 
contribute  to  general  average  ceases,  and  the  damage  and  losses  which 
have  been  sustained  are  considered  particular  average,  to  be  borne  by 
those  interested  in  the  articles  which  have  sustained  tlie  same . 

732.  When,  after  the  ship  has  been  saved  from  the  peril  which  occa- 
sioned the  general  average,  the  ship  perishes  through  another  accident 
in  the  course  of  her  voyage,  the  articles  saved  from  the  former  peril 
which  have  been  preserved  after  the  loss  of  the  ship,  contribute  to  the 
genera]  average  according  to  their  value  in  their  existing  condition, 
after  deducting  the  expenses  of  salving  them. 

733.  Articles  jettisoned  do  not  contribute  to  the  payment  of 
damage  sustained,  after  their  jettison,  by  the  goods  saved. 

734.  In  all  the  aforesaid  cases,  the  captain  and  crew  have  a  lien  on 
the  goods  or  their  proceeds,  for  their  interest  in  the  contribution. 


3e2 


788 


APPENDIX  Y. 


APPENDIX  Y. 


THE  INTERNATIONAL  GENERAL  AVERAGE  CONGRESSES. 

In  the  years  1860  to  1864,  a  vigorous  effort  was  made  to  establisli 
throughout  Europe,  and  for  the  Continent  of  North  America,  a 
uniform  system  of  general  average. 

It  M-as  commenced  under  distinguished  patronage.  On  the  3rd  of 
May,  1860,  a  circular,  signed,  amongst  others,  by  the  Chairman  of 
Lloyd's,  the  Chairman  of  the  London  General  Shipowners'  Society, 
the  Chairman  of  Lloyd's  Salvage  Association,  and  the  Chairmen  of 
the  Chambers  of  Commerce,  the  Underwriting  Associations,  and  other 
mercantile  bodies  of  Liverpool,  Glasgow,  Hull,  and  Bristol,  was  sent 
out,  by  way  of  invitation,  to  all  the  maritime  countries  of  Europe, 
and  to  the  United  States.  In  this  circular  were  sot  forth  the  serious 
evils  which  resulted  from  the  want  of  uniformitv  in  the  legislation 
affecting  general  average;  and  a  place  and  time  were  appointed  for 
a  meeting  of  delegates  from  the  various  English  and  foreign  mer- 
cantile bodies,  and  others  supposed  to  be  most  competent  to  discuss 
the  subject.  ^ 

This  invitation  Avas  pretty  largely  responded  to.  The  delegates 
who  appeared  at  the  first  meeting  represented  the  Netherlands' 
Trading  Companj^  of  Amsterdam;  the  Board  of  Trade  of  Boston 
(U.S.);  the  Chambers  of  Commerce  of  Antwerp,  Bremen,  Bristol, 
Copenhagen,  Edinburgh,  Glasgow,  Hamburg,  Liverpool,  Mobile,  and 
New  York;  the  Committee  of  Lloyd's;  the  Salvage  Associations  of 
London  and  Liverpool;  the  Boards  of  Underwriters  of  Boston, 
Copenhagen,  Liverpool,  New  Orleans,  and  New  York;  and  the  Ship- 
owners' Associations  of  Amsterdam,  Dundee,  Glasgow,  Greenock, 
and  Liverpool.  There  were  also  present  average  adjusters,  under- 
writers, and  lawyers  from  Amsterdam,  Glasgow,  London,  Liverpool, 
and  Manchester. 

The  first  meeting  took  place  at  Glasgow,  under  the  presidency  of 
Lord  Brougham,  assisted  by  Lord  Neaves.  Papers  were  read,  dis- 
cussions ensued,  and,  finall}-,  a  series  of  resolutions  were  passed, 
which  were  as  follows:  — 

TRE  GLASGOW  EESOLVTIONS. 

§  1.  As  a  general  rule,  in  case  of  the  voluntary  stranding  of  a 
vessel,  the  loss  or  damage  to  ship,  cargo,  or  freight,  con- 


THE  INTERNATIONAL  GENERAL  AVERAGE  CONGRESSES.  789 

sequent  on  such  stranding-,  ought  not  to  be  the  subject  of 
general  average:  but  witliout  prejudice  to  such  a  claim  in 
exceptional  cases,  upon  clear  proof  of  special  facts. 

§  2.  The  damage  done  to  ship,  cargo,  and  freight  in  extinguishing 
a  fire  ought  to  be  general  average. 

§  3.  The  damage  done  to  cargo  by  chafing  and  breakage,  resulting 
from  a  jettison  of  part  of  the  remainder  of  the  cargo,  ought 
not  to  be  allowed  in  general  average. 

§  4.  The  damage  done  to  cargo,  and  the  loss  of  it  and  of  the 
freight  on  it,  resulting  from  discharging  it  at  a  port  of 
refuge  in  the  way  usual  in  that  port  with  ships  not  in 
distress,  ought  not  to  be  allowed  in  general  average. 

§  5.  The  loss  sustained  by  cutting  away  the  wreck  of  masts  acci- 
dentally broken  ought  not  to  be  allowed  in  general  average. 

§  6.  The  expense  of  warehouse-rent  at  a  port  of  refuge  on  cargo 
necessarily  landed  there,  the  expense  of  re-shipping  it,  and 
the  outward  port-charges  at  that  port,  ought  to  be  allowed 
in  general  average. 

§  7.  The  damage  done  to  ship,  cargo,  and  freight  by  carrying  a 
press  of  sail,  ought  not  to  be  allowed  in  general  average. 

§  8.  The  wages  and  provisions  for  the  ship's  crew  ought  to  be 
allowed  to  the  shipowners  in  general  average,  from  the 
date  the  ship  reaches  a  port  of  refuge  until  the  date  on 
which  she  leaves  it. 

§  9.  When  the  amount  of  expenses  is  loss  than  the  value  of  the 
property  finally  saved,  the  contributing  values  of  the  ship, 
freight,  and  cargo  ought  to  be  their  values  to  the  owners 
of  them  respectively  at  the  termination  of  the  adventure . 

§  10.  When  the  amount  of  the  expenses  is  greater  than  the  value 
of  the  property  saved,  the  proceeds  of  the  property  so  saved 
ought  to  be  applied  towards  those  expenses;  and  the  excess 
of  the  expenses  over  the  proceeds  ought  to  be  apportioned 
as  if  the  whole  property  had  finally  reached  its  destination. 

>5  11.  lu  fixing  the  value  of  frciglil,  the  wages  and  port-charges 
up  to  the  date  of  the  general  average  act  ought  not  to  be 
deducted,  and  the  wages  and  port-charges  after  that  date 
ought  to  be  deducted,  from  the  gross  freight  at  the  risk  of 
the  shij)owner. 


7'90  APPENDIX  Y. 

Having  drawn  up  their  rules  in  language  which  appears  not  ill- 
adapted  for  conveying  their  meaning,  the  Glasgow  meeting  fell  into 
the  natural  yet  grievous  error  of  employing  an  English  Parliamen- 
tary draughtsman  to  put  it  into  legal  form — an  error  which  cost 
them  four  j^ears,  and  was,  perhaps,  fatal  to  their  enterprise.  Their 
concluding  resolution  was,  that  a  Bill  should  be  drawn  up  on  the 
basis  of  these  eleven  rules,  with  the  expectation  that  eventually  steps 
might  be  taken  for  obtaining  for  their  Bill  such  legislative  sanction 
in  this  and  other  countries  as  would  attain  the  object  they  had  in 
vieAv.  . 

The  Committee  for  managing  the  affairs  of  Lloyd's,  on  receipt  of 
tlie  report  of  their  representative  who  was  present  at  Glasgow,  passed, 
at  their  meeting  of  October  10,  1860,  two  resolutions,  the  first  of 
which  expressed  the  thanks  of  the  Committee  to  the  several  gentle- 
men who  had  come  from  abroad  to  attend  this  conference,  and  the 
second  declared,  "  That  this  Committee  take  a  strong  interest  in  the 
subject  discussed  at  Glasgow,  and  that  they  will  gladly  co-operate 
in  the  endeavour  to  carry  out  the  very  desirable  object  sought  to 
be  attained." 

Six  months  had  been  assigned  by  the  Glasgow  meeting  as  the 
time  to  be  given  for  turning  their  eleven  resolutions  into  Parlia- 
mentary language.  The  task  occupied  two  years,  and  the  result  was 
a  very  long,  very  obscure,  and  perfectly  unsatisfactory  Bill  of  126 
clauses.  AVhat  was,  perhaps,  Avorst  of  all,  the  Committee  of  Lloyd's 
did  not  like  the  Bill,  and  appear  to  have  extended  their  dislike  to  the 
whole  scheme. 

In  1862,  man}'  of  the  same  delegates  crossed  the  Atlantic  and  the 
Channel,  Avith  a  zeal  beyond  all  praise,  to  meet  their  English  col- 
leagues in  London.  No  representative  of  Lloyd's  was  this  time 
present  to  Avelcome  them.  ISTot  permitting  themselves  to  be  dis- 
couraged by  a  reception  so  different  from  that  which  the  previous 
attitude  of  Lloyd's  Committee  had  led  them  to  expect,  the  members 
steadily  addressed  themselves  to  their  task,  and,  under  the  presi- 
dency of  Sir  Travers  Twiss,  for  several  days  laboured  through  the 
clauses  of  the  obnoxious  Bill.  Code-making,  it  was  evident,  was  not 
an  English  accomplishment.  Eventually,  the  Bill  Avas  found  un- 
manageable, and  the  London  Congress  separated,  after  passing  a 
resolution  that  another  method  of  procedure  should,  for  the  future, 
be  adopted;  that  a  Committee  should  be  appointed  to  decide  upon 
and  bring  into  shape  a  Bill  or  series  of  resolutions,  having  for  their 
object  the  establishing  one  uniform  system  of  general  average 
throughout  the  mercantile  Avorld. 

This  Committee  consisted  of  the  folloAving  members:— E.  E. 
Wendt,  of  London,  chairman;  L.  R.  Baily,  Liverpool;  J.  R.  Brad- 
ford, Boston;  L.  C.  Driebeck,  Rotterdam;  T.  C.  Engels,  Antwerp; 


THE  INTERNATIONAL  GENERAL  AVERAGE  CONGRESSES.  ~'Jl 

S.  Gram,  Copenhagen;  G.  W.  Hastings,  Loudon;  W.  J.  Lamport, 
Liverpool;  E.  Van  Peborgh,  Antwerp;  E.  N.  Eahusen,  Amsterdam; 
P.  H.  Eathbone,  Liverpool;  R.  M.  Smith,  Edinburgh;  J.  J.  Svensen, 
Copenhagen;  E.  Thune,  Copenhagen;  J.  Wertheim,  Amsterdam; 
and  R.  Lowndes,  Liverpool,  secretary. 

The  Committee,  consisting  of  persons  living  at  a  distance  from  one 
another,  carried  on  an  iuterchano:e  of  aro-umcntative  discussion  bv 
means  of  a  number  of  papers  or  pamphlets,  which  were  printed  and 
circulated  amongst  themselves.  The  ground  being  thus  cleared, 
they  were  prepared  for  a  third  meeting  or  congress,  which  took 
place  in  the  summer  of  1864,  at  York.  Sir  Fitzroy  Kelly,  after- 
wards Lord  Chief  Baron  of  the  Exchequer,  presided;  and  there 
were  present,  besides  the  members  of  the  Committee,  many  of  the 
gentlemen  who  had  attended  the  Glasgow  meeting;  amongst  whom 
I  must  not  omit  to  mention  the  Hon.  W.  Marvin,  formerly  judge 
of  the  Admiralty  Court  of  Florida,  who  took  an  important  part  in 
the  proceedings,  and  has  since  published  a  valuable  report  addressed 
to  the  American  Board  of  Underwriters,  whom  he  represented,  giving 
an  account  of  our  proceedings,  and  appending  much  useful  informa- 
tion as  to  foreign  laws  of  average,  some  of  which  I  have  made  use 
of  in  these  appendices  (a). 

At  the  York  meeting,  the  following  code  of  rules,  dealing  with 
the  principal  points  as  to  which  there  is  at  present  a  diversity  of 
practice  in  different  countries,  was  draAvn  up  (b). 

THE  YORK  RULES. 

Rule  I. — A  jettison  of  timber  or  deals,  or  any  other  description  of  Jettison  of 
wood  cargo,  carried  on  the  deck  of  a  ship  in  pursuance  of  a    *"'^    cargo, 
general  custom  of  the  trade  in  which  the  ship  is  then  en- 
gaged, shall  be  made  good  as  general  average  in  like  manner 
as  if  such  cargo  had  been  jettisoned  from  below  deck. 
No  jettison  of  deck  cargo  other  than  timber  or  deals,  or  other 
wood  cargo,  so  carried  as  aforesaid,  shall  be  made  good  as 
general  average. 


(a)  There  were  also  present  M.  Crusemanu,  representing  the  Chamber  of  Com- 
merce of  Bremen  ;  Dr.  Franck,  representing  Hamburg  and  Lubeck  ;  M.  Dohihaye, 
representing  the  Comite  des  Assuranoes  of  Paris  ;  M.  Kamensky,  appointed  by  the 
Russian  Government ;  Messrs.  Richards,  Hopkins,  and  Hale,  average  adjusters,  of 
London;  besides  several  representatives  of  English  shipowning  and  insurance 
associations. 

(i)  On  some  points,  as  will  be  seen,  the  York  Rules  differ  from  those  laid  down 
at  Glasgow.  The  difference  is,  no  doubt,  attributable  to  the  fuller  discussion  which 
had  taken  place  in  the  interim. 


792 


APPENDIX  Y. 


Damage  by 
jettison. 


Extinguish- 
ing fire  on 
shipboard. 

Cutting  away 
wreck. 


Voluntary 
stranding. 


Carrying 
press  of  sail. 

Port  of  refuge 
expenses. 


Every  structure  not  built  in  ^vith  the  frame  of  the  vessel  shall 
be  cousidered  to  be  a  part  of  the  deck  of  the  vessel  (c). 

Rule  II. — Damage  done  to  goods  or  merchandise  by  water  which 
unavoidably  goes  down  a  ship's  hatches  opened,  or  other 
opening  made,  for  the  purpose  of  making  a  jettison,  shall 
be  made  good  as  general  average,  in  case  the  loss  by  jetti- 
son is  so  made  good. 
Damage  done  by  breakage  and  chafing,  or  otherwise  from 
derangement  of  stowage  consequent  upon  a  jettison,  shall 
be  made  good  as  general  average  (d). 

Rile  III. — Damage  done  to  a  ship  or  cargo,  and  either  of  them, 
by  water  or  otherwise,  in  extinguishing  a  fire  on  board  the 
ship,  shall  be  general  average  (e). 

Rule  IV. — Loss  or  damage  caused  by  cutting  away  the  wreck  or 
remains  of  spars,  or  of  other  things  which  have  previously 
been  carried  away  by  sea-peril,  shall  not  be  made  good  as 
general  average  (/). 

Rule  V. — When  a  ship  is  intentionally  run  on  shore  because  she 
is  sinking  or  driving  on  shore  or  rocks,  no  damage  caused  to 
the  ship,  the  cargo,  and  the  freight,  or  any  or  either  of 
them,  by  such  intentional  running  on  shore,  shall  be  made 
good  as  general  average  (/). 

Rule  VI. — Damage  occasioned  to  a  ship  or  cargo  by  carrying  a 
press  of  sail  shall  not  be  made  good  as  general  average  (/). 

Rule  VH. — When  a  ship  shall  have  entered  a  port  of  refuge 
under  such  circumstances  that  the  expenses  of  entering  the 
port  are  admissible  as  general  average,  and  when  she  shall 
have  sailed  thence  with  her  original  cargo  or  a  part  of  it, 
the  corresponding  expenses  of  leaving  such  port  shall  like- 
wise be  so  admitted  as  general  average;  and  whenever  the 
cost  of  discharging  cargo  at  such  port  is  admissible  as 
general  average,  the  cost  of  re-loading  and  stowing  such 


(c)  The  corresponding  Rule  I.  of  the  York-Antwerp  Rules,  1877,  was  as 
follows :  — 

"No  jettison  of  deck  cargo  shall  be  made  good  as  general  average. 

' '  Every  structure  not  built  in  with  the  frame  of  the  vessel  shall  be  considered  to 
be  a  part  of  the  deck  of  the  vessel." 

{d)  Reproduced  in  the  York- Antwerp  Rules,  1877,  with  the  addition  of  the  final 
words  :  "In  case  the  jettison  is  so  made  good." 

{e)  Rule  III.  of  the  I'ork- Antwerp  Rules,  1877,  was  as  follows  : — 

"  Damage  done  to  a  ship  and  cargo,  or  either  of  them,  by  water  or  otherwise, 
in  extinguishing  a  fire  on  board  the  ship,  shall  be  general  average,  except  that  no 
compensation  be  made  for  damage  done  by  water  to  packages  which  have  been,  on 
fire." 

(/)  Reproduced  without  alteration  in  the  York-Antwerp  Rules,  1877. 


THE  INTERNATIONAL  GENERAL  AVERAGE  CONGRESSES.  793 

cargo  on  board  the  said  ship,  together  with  all  storage - 
charges  on  such  cargo,  shall  likewise  be  so  admitted. 
Except  that  any  portion  of  the  cargo  left  at  such  port  of 
refuge,  on  account  of  its  being  unfit  to  he  carried  forward, 
or  on  account  of  the  unfitness  or  inability  of  the  ship  to 
carry  it,  shall  not  he  called  on  to  contribute  to  such  general 
average  (g). 

EuLK  VIII. — When  a  ship  shall  have  entered  a  port  of  refuge  Wages  and 
under  the  circumstances  defined  in  Rule  VII.,  the  wages  of  crew  in 
and  cost  of  maintenance  of  the  master  and  mariners,  from  port  of 
the  time  of  entering  such  port  until  the  ship  shall  have         '^ 
been  made  ready  to  x^i'oceed  upon  her  voj-age,  shall  be 
made  good  as  general  average.     Except  that  any  portion 
of  the  cargo  left  at  such  port  of  refuge  on  account  of  its 
being  unfit  to  he  carried  forward,  or  on  account  of  the 
unfitness  or  inability  of  the  ship  to  carry  it,  shall  not  be 
called  on  to  contribute  to  such  general  average  (g). 

Rule  IX. — Damage  done  to  cargo  by  discharging  it  at  a  port  of  Damage  to 
refuge  shall  not  be  admissible  as  general  average  in  case   [^hargiiig. 
such  cargo  shall  have  been  discharged  at  the  place  and  in 
the  manner  customary  at  that  port  with  ships  not  in  dis- 
tress (K). 

Rule  X. — The  contribution  to  a  general  average  shall  be  made  Contributory 
upon  the  actual  values  of  the  property  at  the  termination  of 
the  adventure,  to-  which  shall  be  added  the  amount  made 
good  as  general  average  for  property  sacrificed;  deduction 
being  made  for  the  shipoivnefs  freight  and  passage-money 
at  risk,  of  two- fifths  of  such  freight,  in  lieu  of  crew's  wages, 
port-charges,  and  all  other  deductions;  deduction  being 
also  made,  from  the  value  of  the  property,  of  all  charges 
incurred  in  respect  thereof  subsecj[uently  to  the  arising  of 
the  claim  to  general  average  (^). 

Rule  XI. — In  every  case  in  which  a  sacrifice  of  cargo  is  made   Loss  of 
ffood  as  general  averao-o,  the  loss  of  freight  (if  aiiv)  which  is   freight. 


iff)  The  sentence  in  italics  was  omitted  in  the  York- Antwerp  Rules,  1877. 

(A)  Reproduced  without  alteration  in  the  York- Antwerp  Rules,  1877. 

!i)  In  the  York-Antwerp  Rules,  1877,  the  words  "deduction  being  made  from 
the  shipowner's  freight  and  passage  money  at  risk  of  such  port  charges  and  crew's 
wages  as  would  not  have  been  incurred  had  the  ship  and  cargo  been  totally  lost  at 
the  date  of  the  general  average  act  or  sacrifice,"  were  substituted  for  the  words  in 
italics. 


794 


APPENDIX  Y. 

caused  by  such  loss  of  cargo  shall  likewise  be  so  made 
good  (7). 

The  framing  of  these  rules  was,  up  to  187G,  the  supreme  effort  of 
the  International  General  Average  Committee.  The  members  sepa- 
rated, and,  practically,  nothing  further  was  done.  An  attempt  was 
made  to  induce  the  English  Board  of  Trade  to  take  the  matter  up; 
and  it  is  said  that  representations  have  passed,  by  way  of  a  com- 
mencement, between  the  English  and  French  Governments  on  the 
subject.  The  truth  is,  the  members  of  the  Committee  were  men 
whose  time  was  fully  occupied  with  matters  of  more  immediate  per- 
sonal concernment,  and  the  delays  of  the  English  bureaux  were 
obstacles  which  they  were  powerless  to  overcome.  The  indifference, 
if  not  hostility,  of  Lloyd's  aided  in  wrecking  the  undertaking. 

Dr.  Franck,  in  a  work  of  his  published  in  Dresden,  makes  some 
severe  but  deserved  animadversions  on  the  impotent  conclusion  of 
this  useful  and,  at  one  time,  promising  undertaking:  "It  was  for- 
gotten in  England,"  says  this  learned  writer,  "  that  the  object  aimed 
at  was — a  law;  and  that  the  discussion  and  agitation  for  the  estab- 
lishing of  a  laAv  was  quite  a  different  thing  from  bringing  the  law 
itself  into  being"  (7v'). 

It  is  interesting  to  learn,  from  Dr.  Franck's  work,  that  in  1871 
the  Italian  Government  proposed  a  Congress  at  Naples,  for  the 
discussion  of  various  international  questions,  one  of  which  was,  the 
practicability  of  establishing  one  uniform  code  of  general  average 
for  all  countries  (I). 


Thus  the  matter  stood  until  1876.  In  that  year  it  was  taken  up 
afresh  by  the  "  Society  for  the  Reform  and  Codification  of  the  Law  of 
Nations."  A  Conference  was  held  at  Bremen,  in  1876,  which  was 
followed,  in  1877,  by  a  Conference  at  Antwerp,  largely  attended  by 
representatives  from  the  more  important  mercantile  bodies  of  the 
chief  countries  of  Europe,  and  of  the  United  States.  At  this  Confer- 
ence, which  was  presided  over  by  Lord  O'Hagan,  the  whole  subject 
of  general  average  was  opened  out,  from  various  points  of  view,  in 
the  attempt  to  discover  the  best  mode  of  establishing  a  uniform 
system.     The  result  was  somewhat  remarkable:  it  was  found,  in  the 


(J)  Reproduced  without  alteration  in  the  York-Antwerp  Rules,  1877. 
The  following  rule  (No.  XII.)  was  added  in  1877  :  — 

"The  value  to  be  allowed  for  goods  sacrificed  shall  be  that  value  which  the 
owner  would  have  received  if  such  goods  had  not  been  sacrificed." 

(^•)  Herstellung  eines  allgemeinen  Seegesetzbuches.     Franck,  1873:  p.  33. 
{I)  Ibid.  p.  39. 


THE  INTERNATIONAL  GENERAL  AVERAGE  CONGRESSES. 

opinion  of  an  ovei-Avhelming-  majority  of  those  present,  that  there 
was  little  or  nothing  that  could  with  advantage  be  added  to,  or 
altered  in,  the  York  Rules.  The  alterations  finally  made  in  these 
Eules  (which  have  already  been  indicated  in  the  notes  to  the  text 
of  the  Rules),  were  so  slight,  that  it  was  resolved,  as  the  simplest 
way  of  indicating  this  fact,  to  give  to  the  new  Rules  the  title  of  "  The 
York  and  Antwerp  (or  York-Antwerp)  Rules." 


795 


A  few  words  are  necessar}-  to  complete  the  history  of  the  York- 
Antwerp  Rules  in  their  present  form.  After  the  Rules  of  1877  had 
been  adopted,  a  Central  Committee  was  formed  in  London  to  consider 
the  best  means  of  introducing  the  Rules  into  general  use.  The  suc- 
cess of  the  steps  they  took  is  indicated  by  the  fact  that,  in  1878, 
owners  of  vessels  representing  about  two-fifths  of  the  total  tonnage 
of  the  United  Kingdom  agreed  to  insert  a  clause  in  their  charter- 
parties  and  bills  of  lading"  providing  for  the  adjustment  of  general 
average  in  accordance  with  the  York- Antwerp  Rules.  Their 
example  was  quickly  followed  by  most  underwriters,  who  by  the  in- 
sertion of  a  corresponding  clause  in  their  policies  agreed  to  pay 
general  average  "as  per  York-Antwerp  Rules,  if  in  accordance  with 
the  contract  of  affreightment."  The  Corporation  of  Lloyd's,  how- 
ever, still  withheld  tlieir  support,  on  the  ground  that  the  Rules  threw 
an  undue  liability  upon  the  cargo,  but  it  was  open,  of  course,  for 
any  underwriter  at  Lloyd's  to  agree  with  the  assured  to  insert  a 
clause  in  the  policy  incorporating  the  York-Antwerp  Rules.  Similar 
movements  in  favour  of  the  adoption  of  the  Rules  took  place  in  all 
the  leading  maritime  States  of  Europe,  in  the  United  States,  and  in 
the  British  Colonies;  with  hardly  any  serious  opposition,  the  Rules 
were  approved  by  shipowners  and  underwriters  in  tliese  countries, 
and  general  effect  was  soon  given  to  them  in  contracts  of  affreiglit- 
ment  and  policies  of  insurance. 

After  the  Rules  had  been  subjected  to  a  practical  test  for  some 
cen  years,  it  was  recognised  that  they  did  not  entirely  meet  the  re- 
quirements of  modern  commerce,  and  that  a  revision  of  some  of 
their  provisions  was  desirable-  Accordingl}-,  on  the  initiative  of 
the  Association  of  Average  Adjusters  of  Great  Britain,  the  (pics- 
tion  was  brought  up  at  the  fourteenth  Conference  of  the  Association 
for  the  Reform  and  Codification  of  the  Law  of  iSTations,  held  at 
Liverpool  in  1890.  The  former  Association  prepared  a  report  for 
submission  to  the  Conference,  suggesting  various  alterations  in  and 
additions  to  the  existing  Rules.  After  a  full  discussion  of  the  Report, 
certain  amendments  in  the  old  Rules  were  agreed  to,  and  a  few 
entirely  new  Rules  were  added,  the  whole  forming  the  Code  known  as 


796  APPENDIX  Y. 

the    York- Antwerp    Rules,  1890,  now   almost   universally    adopted 
throughout  the  Avorld.     The  following  are  their  provisions:  — 

YOEK-ANTWERP  RULES,  1890. 

Rule  I. — Jettison  of  Deck  Cargo. 

No  jettison  of  deck  cargo  shall  be  made  good  as  general  average. 
Every  structure  not  built  in  with  the  frame  of  the  vessel  shall  bo 
considered  to  be  a  part  of  the  deck  of  the  vessel  (w) . 

Rule  II. — Damage  by  Jettison  and  Sacrifice  for  the 

Common  Safety. 

Damage  done  to  a  ship  and  cargo,  or  either  of  them,  by  or  in  con- 
sequence of  a  sacrifice  made  for  the  common  safety,  and  by  water 
which  goes  down  a  ship's  hatches  opened  or  other  opening  made  for 
the  purpose  of  making  a  jettison  for  the  common  safety,  shall  be 
made  good  as  general  average. 

Rule  III. — Extinguishing  Fire  on  Shipboard. 

Damage  done  to  a  ship  and  cargo,  or  either  of  them,  by  water  or 
otherwise,  including  damage  by  beaching  or  scuttling  a  burning 
ship,  in  extinguishing  a  fire  on  board  the  ship,  shall  be  made  good  as 
general  average;  except  that  no  compensation  shall  be  made  for 
damage  to  such  portions  of  the  ship  and  bulk  cargo,  or  to  such 
separate  packages  of  cargo,  as  have  been  on  fire  (n). 

Rule  IV. — Cutting  away  Wreck. 

Loss  or  damage  caused  by  cutting  away  the  wreck  or  remains  of 
spars,  or  of  other  things  which  have  previously  been  carried  away 
by  sea-peril,  shall  not  be  made  good  as  general  average  (o). 

Rule  V.- — Voluntary  Stranding. 

When  a  ship  is  intentionally  run  on  shore,  and  the  circumstances 
are  such  that  if  that  course  were  not  adopted  she  would  inevitably 


{ill)  It  has  been  held  in  Germany  that  damage  done  to  a  vessel  in  the  act  of 
jettLSoning  a  deck  cargo  is  admissible  as  general  average,  even  where  the  jettison 
itself  id  not  so  admis.sible.  See  the  judgment  of  O.  L.  G.,  Hamburg,  1900, 
S.S.  Skodsborg,  supra,  pp.  549  and  .359. 

(w)  As  to  the  interpretation  of  this  Rule,  .see  Grcenahiclds  v.  Stephois,  [1908] 
1  K.  B.  51 ;  App.  Cas.  431,  supra,  p.  94. 

(o)  As  to  the  practice  in  America  regarding  this  Rule,  where  the  wreckage  in 
falling  does  damage  to  the  ship,  see  Appendix  V.,  Kupra,  p.  743. 


YORK-ANTWERP  RULES,   1890.  '^97 

sink,  or  drive  on  shore  or  on  rocks,  no  loss  or  damage  caused  to  the 
ship,  cargo,  and  freight,  or  any  of  them,  by  such  intentional  running 
on  shore  shall  be  made  good  as  general  average.  But  in  all  other 
cases  Avhere  a  ship  is  intentionally  run  on  shore  for  the  common 
safety,  the  consequent  loss  or  damage  shall  be  allowed  as  general 
average . 

*  EuLE  VI. — Carrying  Press  of  Sail.     Damage  to  or  Loss 

OF  Sails. 

Damage  to  or  loss  of  sails  and  spars,  or  either  of  them,  caused  by 
forcing  a  ship  off  the  ground  or  by  driving  her  higher  up  the  ground, 
for  the  common  safet}-,  shall  be  made  good  as  general  average ;  but 
where  a  ship  is  afloat,  no  loss  or  damage  caused  to  the  ship,  cargo, 
and  freight,  or  any  of  them,  by  carrying  a  press  of  sail,  shall  be  made 
good  as  general  average.     . 

KuLE  VII. — Damage  to  Engines  in  Refloating  a  Ship. 

Damage  caused  to  machinery  and  boilers  of  a  ship  which  is  ashore 
and  in  a  position  of  peril  in  endeavouring  to  refloat  shall  be  allowed 
in  o-eneral  averao-e,  when  shewn  to  have  arisen  from  an  actual  intcn- 
tion  to  float  the  ship  for  the  common  safety  at  the  risk  of  euch 
damage  (p) . 

Rule  VIII. — Expenses  Lightening  a  Ship  when  Ashore  and 

Consequent  Damage. 

When  a  ship  is  ashore -and,  in  order  to  float  her,  cargo,  bunker 
coals,  and  ship's  stores,  or  any  of  them,  are  discharged,  the  extra 
cost  of  lightening,  lighter  hire,  and  reshipping  (if  incurred),  and 
the  loss  or  damage  sustained  thereby,  shall  be  admitted  as  general 
average  (q). 

Rule  IX. — Cargo,  Ship's  Materials,  and  Stores  Burnt 

FOR  Fuel. 

Cargo,  ship's  materials,  and  stores,  or  any  of  them  necessarily 
burnt  for  fuel  for  the  common  safety  at  a  time  of  peril,  shall  be 


{p)  The  damage  done  to  the  machinery  and  boilers  of  a  vessel  in  extricating'  her 
from  a  position  of  peril  due  to  ice  has  been  held  in  Germany  to  be  allowable  as 
general  average.  See  the  judgment  of  0.  L.  G.,  Hamburg,  1908,  S.S.  Eros, 
supra,  p.  559. 

See  also  the  decisions  iu  Holland  as  to  "  a  position  of  peril  "  required  by  this 
Rule,  supra,  pp.  59-5,  596. 

[q)  It  has  been  decided  in  Holland  that,  for  the  application  of  this  Rule,  it  is 
sufficient  that  the  vessel  is  ashore,  without  necessarily  being  in  peril.  See  the 
cases  cited  supra,  p.  596. 


798  APPENDIX  Y. 

admitted  as  general  average,  Avhen  and  only  when  an  ample  supply 
of  fuel  had  been  provided;  but  the  estimated  quantity  of  coals  that 
would  have  been  consumed,  calculated  at  the  price  current  at  the 
ship's  last  port  of  departure  at  the  date  of  her  leaving  shall  be 
charged  to  the  shipowner  and  credited  to  the  general  average. 

EuLE  X. — Expenses  at  Port  of  Refuge,  &c. 

(a)  When  a  ship  shall  liave  entered  a  port  or  place  of  refuge,  or 
shall  have  returned  to  her  port  or  place  of  loading,  in  consequence 
of  accident,  sacrifice,  or  other  extraordinary  circumstances,  which 
render  that  necessary  for  the  common  safety,  the  expenses  of  enter- 
ing such  port  or  place  shall  be  admittred  as  general  average;  and 
when  she  shall  have  sailed  thence  Avith  her  original  cargo,  or  a  part 
of  it,  the  corresponding  expenses  of  leaving  such  port  or  place,  con- 
sequent upon  such  entry  or  return,  shall  likewise  be  admitted  as 
general  average  (qq). 

(b)  The  cost  of  discharging  cargo  from  a  ship,  Avhether  at  a  port 
or  place  of  loading,  call,  or  refuge,  shall  be  admitted  as  general 
average,  when  the  discliarge  was  necessary  for  the  common  safety  or 
to  enable  damage  to  the  ship,  caused  by  sacrifice  or  accident  during 
the  voyage,  to  be  repaired,  if  the  repairs  Avere  necessary  for  the  safe 
prosecution  of  the  voyage. 

(c)  Whenever  the  cost  of  discharging  cargo  from  a  ship  is  ad- 
missible as  general  average,  the  cost  of  reloading  and  storing  such 
cargo  on  board  the  said  ship,  together  Avith  all  storage  charges  on 
such  cargo,  shall  likeAvise  be  so  admitted.  But  Avhen  the  ship  is 
condemned  or  does  not  proceed  on  her  original  voyage,  no  storage 
expenses  incurred  after  the  date  of  the  ship's  condemnation  or  of  the 
abandonment  of  the  voyage  shall  be  admitted  as  general  average  (r) . 

{gq)  See  the  dictiun  of  Bigham,  J.,  in  TFesioll  v.  Carter  (1898),  3  Com.  Cas.  112, 
that  the  cost  of  cutting  a  passage  out  through  the  ice  was  not  part  of  the 
"  corresponding  expenses  of  leaving  "  the  port. 

()j  It  has  been  pointed  out  to  the  Editors  by  Dr.  E.  N.  Rahusen,  of  Amsterdam 
(Avho,  it  is  interesting  to  note,  is  probably  the  only  surA'iving  member  of  the 
original  Conference  of  1860),  that  where  the  contract  of  affreightment  is  governed 
by  the  law  of  Belgium,  France,  or  Holland,  the  fact  of  the  vessel  being  condemned 
may  not  affect  the  treatment  of  the  reloading  and  storage  charges,  as  according  to 
these  laws,  the  master  is  bound,  where  the  original  ship  is  condemned  at  a  port  of 
refuge,  to  provide  another  ship  to  carry  on  the  cargo  to  its  destination  under  the 
original  contract  of  affreightment.  A  similar  provision  is  found  in  the  Codes  of  the 
Argentine  Republic,  Mexico  and  Spain. 

In  the  case  of  Anglo- Argentine  Live  Stock  Produce  Agency,  Ld.  v.  Temperley  S.S. 
Co.,  Ld.,  [1899]  2  Q.  B.  403,  it  was  held  that  the  words  "all  storage  charges  on 
such  cargo  "  did  not  apply  to  the  cost  of  supplying  fodder  and  water  for  cattle  on 
board  a  vessel  during  delay  at  a  port  of  refuge ;  and  even  if  the  cattle  had  been 
discharged,  Bigham,  J.,  doubted  if  such  expeases  could  properly  be  called 
storage  charges. 


YORK-ANTWERP  RULES,   1890.  '^^^ 

(d)  If  a  ship  under  average  be  in  a  port  or  place  at  wliich  it 
is  practicable  to  repair  her,  so  as  to  enable  her  to  carry  on  the  whole 
cargo,  and  if,  in  order  to  save  expenses,  either  she  is  towed  thence 
to  some  other  port  or  place  of  repair  or  to  her  destination,  or  the 
cargo  or  a  portion  of  it  is  transhipped  by  another  ship,  or  otherwise 
forwarded,  then  the  extra  cost  of  such  towage,  transhipment,  and 
forwarding,  or  any  of  them  (up  to  tlie  amount  of  the  extra  expense 
saved)  shall  be  payable  by  the  several  parties  to  the  adventure  in 
proportion  to  the  extraordinary  expense  saved. 

EuLE  XI. — Wages  and  Maintenance  of  Crew  in  Port  of 

Refuge,  &c. 

When  a  ship  shall  have  entered  or  been  detained  in  any  port  or 
place  under  the  circumstances,  or  for  the  purposes  of  the  repairs, 
mentioned  in  Rule  X.,  the  wages  payable  to  the  master,  officers,  and 
crew,  together  with  the  cost  of  maintenance  of  the  same,  during  the 
extra  period  of  detention  in  such  port  or  place  until  the  ship  shall  or 
should  have  been  made  ready  to  proceed  upon  her  voyage,  shall  be 
admitted  as  general  average  (s) .  But  when  the  ship  is  condemned 
or  does  not  proceed  on  her  original  voyage,  the  wages  and  mainten- 
ance of  the  master,  officers,  and  crew,  incurred  after  the  date  of  the 
ship's  condemnation  or  of  the  abandonment  of  the  voyage,  shall  not 
be  admitted  as  general  average  (f). 

Rule  XII. — Damase  to  Cargo  in  Discharging,  &c. 

Damage  done  to  or  loss  of  cargo  necessarily  caused  in  the  act  of 
discharging,  storing,  reloading,  and  stowing,  shall  be  made  good  as 
general  average  w^hon  and  only  when  the  cost  of  those  measures 
respectively  is  admitted  as  general  average  (u) . 

Rule  XIII. — Deductions  from  Cost  of  Repairs. 
In  adjusting  claims  for  general  average,  repairs  to  be  allowed  in 


(s)  It  has  been  held  in  England  that  wages  of  cattlemen  during  detention  of  a 
vessel  at  a  port  of  refuge  are  not  recoverable  in  general  average  under  this  Rule. 
{Anglo-Argentine  Live  Stock  Produce  Agency,  Ld.  v.  Temperley  S.S.  Co.,  Ld.,  supra.) 

[t)  It  may  be  that  when  the  master  is  bound  by  law  to  forward  the  cargo  by 
another  vessel,  when  the  original  ship  is  condemned,  the  wages  should  be  allowed 
np  to  the  time  of  the  substituted  vessel's  departure  from  the  port  of  distress.  See 
ji.  798,  note  (r),  supra. 

in)  As  to  the  cost  of  reloading  and  stowing  cargo  on  board  a  substituted  ship  at 
a  port  of  refuge  under  certain  foreign  laws,  see  p.  798,  note  (r). 


800 


APPENDIX  Y. 


general   average  shall    be  subject   to    tlie    following   deductions  ia 
respect  of  "new  for  old,"  viz.: — - 

In  the  case  of  iron  or  steel  ships,  from  date  of  original  register 
to  the  date  of  accident, — 


Up  to 
1  year  old 

(A.) 


Between 
1  and  3  years 
(B.) 


Between 
3  and  6  years 
(C.) 


Between 
6  and  10  years 


Between 
10  £0  15  years 
(E.) 

Over 

15  years 

(F.) 


Generally 
(G.) 


All  repairs  to  be  allowed  in  full,  except  paint- 
ing or  coating  of  bottom,  from  which  one-third  is 
to  be  deducted. 

One-third  to  be  deducted  off  repairs  to  and  re- 
newal of  woodwork  of  hull,  masts  and  spars,  furni- 
ture, upholstery,  crockery,  metal  and  glassware, 
also  sails,  rigging,  ropes,  sheets  and  haw^sers  (other 
than  wire  and  chain),  awnings,  covers  and  painting. 

One-sixth  to  be  deducted  off  wire  rigging,  wire 
ropes  and  wire  hawsers,  chain  cables  and  chains, 
donkey  engines,  steam  winches  and  connections, 
steam  cranes  and  connections;  other  repairs  in  full. 

Deductions  as  above  under  Clause  B,  except  that 
one-sixth  be  deducted  off  ironwork  of  masts  and 
spars,  and  machinery  (inclusive  of  boilers  and  their 
mountings). 

Deductions  as  above  under  Clause  C,  except  that 
one-third  be  deducted  off  ironwork  of  masts  and 
spars,  repairs  to  and  renewal  of  all  machinery  (in- 
clusive of  boilers  and  their  mountings),  and  all 
hawsers,  ropes,  sheets,  and  rigging. 

One-third  to  be  deducted  off  all  repairs  and  re- 
newals, except  ironwork  of  hull  and  cementing  and 
chain  cables,  from  which  one-sixth  to  be  deducted. 
Anchors  to  be  allowed  in  full. 

One-third  to  be  deducted  off  all  repairs  and  re- 
newals. Anchors  to  be  allowed  in  full.  One-sixth 
to  be  deducted  off  chain  cables. 

The  deductions  (except  as  to  provisions  and  stores, 
machinery,  and  boilers)  to  be  regulated  by  the  age 
of  the  ship  and  not  the  age  of  the  particular  part 
of  her  to  which  they  apply.  No  painting  bottom  to 
be  allowed  if  the  bottom  has  not  been  painted  within 
six  months  previous  to  the  date  of  accident.  No 
deduction  to  be  made  in  respect  of  old  material 
which  is  repaired  without  being  replaced  by  new, 
and  provisions  and  stores  which  have  not  been  in 
use. 


^ 


YORK- ANTWERP  RULES,   1890.  8Q^, 

'In  the  case  of  wooden  or  composite  ships:  — 

When  a  ship  is  under  one  year  old  from  date  of  original 
register,  at  the  time  of  accident,  no  deduction  new  for 
old  shall  be  made.  After  that  period  a  deduction  of 
one -third  shall  be  made,  witli  the  following- 
exceptions: — 

Anchors  shall  be  allowed  in  fidl.  Chain  cables  shall  be 
subject  to  a  deduction  of  one-sixth  only. 

No  deduction  shall  be  made  in  respect  of  provisions  and 
stores  which  had  not  been  in  use . 

Metal  sheathing-  shall  be  dealt  with,  by  allowing  in  full  tiie 
cost  of  a  weight  equal  to  the  gross  weight  of  metal 
sheathing  stripped  off,  minus  the  proceeds  of  tlie  old 
metal.  Nails,  felt,  and  labour  metalling-  are  subject  to 
a  deduction  of  one-third. 
In  the  case  of  ships  generally: — ■ 

In  the  case  of  all  ships,  the  expense  of  straightening  bent 
ironwork,  including  labour  of  taking  out  and  replacing- 
it,  shall  be  allowed  in  full. 

Graving  dock  dues,  including  expenses  of  removals, 
cartages,  use  of  shears,  stages  and  graving  dock 
materials,  shall  be  allowed  in  full. 

Rule  XIV. — Tempor.'VRY  Repairs. 

No  deductions  "new  for  old"  shall  be  made  from  the  cost  of 
temporary  repairs  of  damage  allowable  as  general  average. 

Rule  XV. — Loss  of  Freight. 

Loss  of  freight  arising  from  damage  to  or  loss  of  cargo  shall  bo 
made  good  as  general  average,  either  when  caused  by  a  general 
average  act  or  when  the  damage  to  or  loss  of  cargo  is  so  made  good. 

Rule  XVI. — Amount  to  be  Made  Good  for  Cargo  Lost 
OR  Damaged  by  Sacrifice. 

The  amount  to  be  made  good  as  general  average  for  damage  or 
loss  of  goods  sacrificed  shall  be  the  loss  which  the  owner  of  the 
goods  has  sustained  thereby,  based  on  the  market  values  at  the  date 
of  the  arrival  of  the  vessel  or  at  tlie  termination  of  the  adventure. 

Rule  XVII.— Contributory  Values. 

The  contribution  to  a  general  average  shall  be  made  upon  the 
actual  values  of  the  property  at  the  termination  of  the  adventure, 
to  which  shall  be  added  the  amount  made  good  as  general  avorag-e 

3  F 


802  APPENDIX  Y. 

for  property  sacrificed;  dedviction  beings  made  from  tlie  shipowner's 
freight  and  passage-money  at  risk,  of  such  port  charges  and  crew's 
wages  as  Avould  not  have  been  incurred  had  the  ship  and  cargo  been 
totally  lost  at  the  date  of  the  general  average  act  or  sacrifice,  and 
have  not  been  allowed  as  general  average;  deduction  being  also 
made  from  the  value  of  the  property  of  all  charges  incurred  in 
respect  thereof  subsequently  to  the  general  average  act,  except  such 
charg-es  as  are  allowed  in  general  average  (x). 

Passengers'  luggage  and  personal  effects,  not  shipped  under  bill 
of  lading,  shall  not  contribute  to  general  average. 

Rule  XVIII. — Adjustment. 

Except  as  provided  in  the  foregoing  rules,  the  adjustment  shall 
be  drawn  up  in  accordance  with  the  law  and  practice  tliat  would  have 
governed  the  adjustment  had  the  contract  of  affreightment  not  con- 
tained a  clause  to  pay  general  average  according  to  these  rules  (y). 


(.t)  A  peculiar  iuterpretatioa  of  this  rule  was  given  by  the  United  States  Circuit 
Court  of  Appeals  in  the  case  of  The  Strathdon  (94  Fed.  206  ;  101  Fed.  600).  The 
case  is  not,  however,  reported  on  this  point,  and  the  editors  are  indebted  to 
Mr.  K.  W.  Elmslie  for  the  particulars  in  this  note.  In  that  case,  a  fire 
broke  out  on  board,  to  extinguish  which,  water  had  to  be  used.  The  vessel 
also  put  into  a  port  of  refuge,  where  repairs  were  effected,  subsequently  to 
which  she  duly  completed  her  voyage.  The  average  adjusters  calculated  the 
contributory  value  of  the  vessel  by  taking  the  round  arrived  value,  and  deducting 
therefrom  the  cost  of  the  repairs  effected  at  the  port  of  refuge  which  were  not 
admissible  as  general  average.  The  Court  held,  however,  that  according  to  the 
true  interpretation  of  the  rule,  the  vessel  should  contribute  on  her  value  on  arrival 
(the  round  value),  plus  the  amount  made  good  for  general  average  repairs.  From 
the  result  so  arrived  at,  there  should  be  deducted  (in  accordance  with  the  concluding 
paragraph  of  the  nale)  the  total  cost  of  the  repairs  at  the  port  of  refuge  which  were 
not  allowed  as  general  average,  the  result  being  that,  in  effect,  the  vessel  had  to 
contribute  twice  over  on  the  cost  of  the  repairs  allowed  as  general  average. 

(y)  In  a  case  where  the  charter-party  incorporated  the  York-Antwerp  Rules,  but 
the  bill  of  lading  did  not,  it  was  held  in  Belgium,  that  effect  had  to  be  given  to  the 
contract  as  contained  in  the  charter-party.  See  The  S.S.  Germa  (1910),  supra, 
p.  461,  note  (a). 

It  has  been  held  in  France  that  where  part  of  the  cargo  is  carried  imder  a 
contract  proxadtng  for  the  application  of  York-Antwerp  Rules,  and  the  contract  for 
the  remainder  of  the  cargo  contains  no  such  pro^dsion,  the  adjustment  as  regards 
the  whole  of  the  cargo,  the  voyage  being  to  a  French  port,  must  be  drawn  up  in 
accordance  with  French  law.     See  Appendix  I.,  supra,  p.  496,  note  (a). 

In  the  case  of  Ralll  v.  Troop  ( (1894),  157  U.  S.  386),  the  United  States  Supreme 
Court  held  that  the  York- Antwerp  Rules  were  not  intended  to  deal  with  the  under- 
lying principles  of  general  average,  but  only  with  certain  subjects  of  contribution. 
See  also  to  the  same  effeot  the  judgment  of  Lord  Alverstone,  C.  J.,  in  Greeashields 
V.  Stephens  (1907),  13  Com.  Cas.  at  p.  99  (C.  A.). 


RULES  OF  PRACTICE.  803 


APPENDIX  /. 


EULES    OF    PEACTICE    ADOPTED    BY    THE    ASSOCIATION 
OF  AVERAGE  ADJUSTERS  UP  TO  1911. 

{Only  the  Rules  relating  to  General  Average  are  shotvn  here.) 

Note. — Some    of     tlie    undermentioned     Rules    arc,    as    indicated, 
"Customs    of    Lloyd's,"    now   by    resolution    of    the    A-ssociatioji   in- 
corporated amongst  the  Rules  of  Practice. 
The  preamble  to  the  Customs  was — 

"  Nothing-  can  be  called  a  '  Custom  of  Lloyd's  '  which  is 
determined  by  a  decision  of  the  superior  Courts ;  for  Avhatover 
is  thus  sanctioned  rests  on  a  ground  surer  than  Custom.  A 
'  Custom  of  Lloyd's  '  then  must  relate  to  a  ])oint  on  Avhich 
the  law  is  doubtful,  or  not  yet  defined,  but  as  to  which,  for 
practical  convenience,  it  is  necessarj^  that  there  should  be  some 
uniform  lule.  By  the  term  is  here  understood  the  Customs 
of  English  Adjusting,  Avhether  as  affecting  General  or 
Particular  Average . ' ' 

1.   Adjustments  "for  the  Consideration  of  Tnder writers.' 

That  any  adjiLStment  ])repared  for  tlio  consideration  of  underwriters 
shall  include  a  statement  of  the  reasons  of  the  average  adjuster  fojt 
making  such  adjustment,  and,  when  submitted  in  conjunction  with  a 
claim  for  Avhich  underwriters  are  liable,  shall  be  contained  in  an  entii-ely 
separate  document.  To  such  adjustments  the  following  note  shall  be 
appended,  viz.:  — 

"This  adjustment  has  been  prepared  by  request,  to  enable  the 
assured  to  submit  the  case  to  underwriters." 

2.  Interest  and  Commission  for  Advancing  Funds. 

That,  in  practice,  interest  and  conmussion  for  advancing  funds  arc 
only  allowable  in  average  when,  proper  and  necessary  steps  having  been 
taken  to  make  a  collection  on  account,  an  out-of-pocket  expense  for 
interest  and  for  commission  for  advancing  funds  is  i-easonably 
incurred. 

•■i  V  '2 


804  APPENDIX  Z. 

3.  Agency  Commission  and  Agency. 

That,  in  practice,  neither  commission  (excepting  bank  commission) 
nor  any  charg-e  by  way  of  agency  or  remuneration  for  trouble  is 
allowed  to  the  shipowner  in  average,  except  in  respect  of  services  ren- 
dered on  behalf  of  cargo  when  such  services  are  not  involved  in  the 
contract  of  affreightment. 

4.  Duty  of  Adjusters  in  respect  of  Cost  of  Repairs. 

That  in  adjusting  particular  average  on  ship  or  general  average  which 
includes  repairs,  it  is  the  duty  of  the  adjuster  to  satisfy  himself  that 
such  reasonable  and  usual  precautions  have  been  taken  to  keep  down 
the  cost  of  repairs  as  a  prudent  shipowner  would  have  taken  if 
uninsured. 

5.  Claims  for  Damage  to  Ship's  Machinery. 

That  no  claim  for  damage  to  ship's  machinery  shall  be  admitted  into 
an  adjustment  unless  a  surve}^  has  been  held  upon  such  machinery  by 
competent  and  disinterested  engineers  as  soon  as  practicable  after  the 
occurrence  of  the  casualty  giving  rise  to  the  claim;  a  certificate  of 
such  survey,  reporting  as  to  the  nature  and  cause  of  the  damage,  to  be 
furnished  to  the  adjuster;  or  unless  clear  proof  be  given  to  the  adjuster 
that  the  holding  of  such  survey  or  the  obtaining  of  such  certificate  is 
impracticable,  which  proof  is  to  be  set  forth  on  the  face  of  the 
adjustment. 

6.  Claims  on  Ship's  Machinery. 

That  in  all  claims  on  ship's  machinery  for  repairs,  no  claim  for  a  new 
propeller  or  new  shaft  shall  be  admitted  into  an  adjustment,  unless  the 
adjuster  shall  obtain  and  insert  into  his  statement  evidence  showing 
what  has  become  of  the  old  propeller  or  shaft. 

7.   Water  Casks  {Custom  of  Lloyd's,   1876). 

Water  casks  or  tanks  carried  on  a  ship's  deck  are  not  paid  for  by 
underwriters  as  general  or  particular  average;  nor  are  warps  or 
other  articles  when  improperly  carried  on  deck. 

8.  Basis  of  Adjustment. 

That  in  any  adjustment  of  general  average  not  made  in  accordance 
with  British  law  it  shall  be  prefaced  on  what  principle  or  according  to 
what  law  the  adjustment  has  been  made,  and  the  reason  for  so  adjusting- 
the  claim  shall  be  set  forth. 

In  all  cases  the  adjuster  shall  give  particulars  in  a  prominent  posi- 
tion in  the  average  statement  of  the  clause  or  clauses  contained  in  the 


RULES  OF  PRACTICE.  805 

charter-party  and  or  bills  of  lading-  Avith  reference  to  the  adjustment 
of  general  average. 

9.  DecMoad  Jettison  (Custom  of  Lloyd's  Amended,  1890-91 1. 

The  jettison  of  a  deekload  carried  according  to  the  usage  of  trade 
and  not  in  violation  of  the  contracts  of  affreightment  is  general  average. 

There  is  an  exception  to  this  rule  in  the  case  of  cargoes  of  cotton, 
tallow,  acids,  and  some  other  goods. 

In  lieu  of — (Custom  of  Lloyd's,  1876). 

The  general  rule  of  law  now  is  that  the  jettison  of  a 
deekload,  carried  by  consent  of  the  ship])er,  is  general  average, 
as  between  the  parties  icho  have  assented  to  this  mode  of 
stoiuage.  The  exoeiytions  are  those  trades  in  tvhich  thei-c  is 
a  custom  that  the  jettison  shall  be  at  the  risk  of  the  shipper 
or  owmer  of  the  deekload. 

Such  customs  may,  perhaps,  tiwiigh  not  very  correctly, 
be  called  "Customs  of  Lloyd's.'' 

This  custom  exists  with  cargoes  of  cotton,  tallow,  acids 
and  some  other  goods. 

10.  Damage  by  Water  used  to  extinguish  Fire. 

That  damage  done  by  water  poured  down  a  shij/s  hold  to  e.xtinguish 
a  fire  be  treated  as  general  average . 

11.  Damage  caused  by  Water  throicn  upon  Burning  Goods. 

That  goods  in  a  ship  which  is  on  fire,  or  the  cargo  of  which  is 
on  fire,  affected  by  water  voluntarily  used  to  extinguish  such  fire,  shall 
not  be  the  subject  of  general  average  if  the  packages  so  affected  be 
themselves  on  fire  at  the  time  the  water  was  thrOAvn  upon  them. 

12.  Voluntary  Stranding  (Custom  of  Lloyd's,  1876). 

The  custom  of  Lloyd's  excludes  from  general  average  all  damage  to 
ship  or  cargo  resulting  from  a  voluntary  sti-anding. 

This  rule  does  not  necessarily  exclude  such  damage  as  is  done  by 
beaching  or  scuttling  a  burning  vessel  to  extinguish  the  fire. 

13.  Expenses  lightening  a  Ship  when  ashore  ("Custom  of  Lloyd's" 

as  amended  1890 — 91). 

When  a  ship  is  ashore,  and,  in  oi'der  to  float  her,  cargo  is  put  into 
lighters,  and  is  then  at  once  re-shipped,  the  Avliole  cost  of  lightering, 
including  lighter  hire  and  re-shipping,  is  general  average. 


806  APPENDIX  Z. 

In  lieu  of  the  follou-tn(j,  furMerli/  succeeding  section  (f)  in 
"  Expenses  at  Port  of  Refuge." 

The  above  rules  do  not  apply  to  the  cost  of  lightening 
a  ship  when  ashore,  in  case  the  cargo  is  put  into  lighters  in 
order  to  float  the  ship,  and  is  then  at  onoe  re-shipped.  In 
such  cases,  the  whole  cost  of  lightening,  including  that  of  re- 
shipping,  is  general  average. 

14.  Sails  set  to  force  a  Ship  off  the  Ground  (Custom  of  Lloyd's,  1876). 

Sails  damaged  by  being-  set,  or  kept  set,  to  force  a  ship  off  the  ground 
or  to  drive  her  higher  up  the  ground  for  the  common  safety,  are  general 
average. 

15.  Stranded  Vessels:  Damage  to  Engines  in  getting  off. 

That  damage  caused  to  machinery  and  boilers  of  a  stranded  vessel, 
in  endeavouring  to  refloat  for  the  common  safety,  when  the  interests  are 
in  peril,  be  allowed  in  general  average. 

IG.   Claim.s  arising  out  of  Deficiency  of  Euel. 

That  in  adjusting  general  average  arising  out  of  deticienc\'  of  fuel 
the  facts  on  which  the  general  average  is  based  shall  be  set  forth  in  tlie 
adjustment,  including  the  material  dates  and  distances,  and  par- 
ticulars of  fuel  supplies  and  consumption. 

17.  Resort  to  Port  of  Refuge  for  General  Average  Repairs: 
Treatment  of  the  Charges  incurred. 

That  when  a  ship  puts  into  a  port  of  refug-e  in  consequence  of 
damage  which  is  itself  the  subject  of  general  average,  and  sails  thence 
with  her  original  cargo,  or  a  part  of  it,  the  outward  as  well  as  the 
inward  port  charges  shall  be  treated  as  general  average;  and  when 
cargo  is  discharged  for  the  purpose  of  repairing  such  damage,  the 
warehouse  rent  and  reloading*  of  tlie  same  shall,  as  well  as  tlie  discharge, 
be  treated  as  genei-al  average.     (See  Atwood  v.  Sellar.) 

18.  Resort    to    Por-t    of    Refuge    on    account    of   Particular    Average 
Repairs:    Treatment  of  the  Charges  incurred. 

That  when  a  ship  puts  into  a  port  of  refuge  in  consequence  of 
damage  which  is  itself  the  subject  of  particular  average  (or  not  of 
general  average^,  and  when  the  cargo  has  been  discharged  in  conse- 
quence of  such  damage,  the  inward  port  charges  and  the  cost  of  dis- 
charging the  cargo  shall  be  general  average,  the  warehouse  rent  of 
cargo  shall  be  a  particular  charge  on  cargo,  and  the  cost  of  reloading 


RULES  OF  PRACTICE.  807 

and   outward  port   charges   shall   be  a   particular   charge   uu    fi-eight. 
(See  Svendsen  v.  Wallace.) 

19.  Treatment  of  Costs  of  Storage  and  Reloading  af  Port  of  Refuge. 

That  when  the  cargo  is  discharged  for  the  purpose  of  repairing, 
re-conditioning  or  diminishing  damage  to  ship  or  cargo  which  is  itself 
the  subject  of  general  average,  the  cost  of  storage  on  it  and  of  reloading 
it  shall  be  treated  as  general  average,  e(|nally  with  the  cost  of  dis- 
charging it. 

20.  Expenses  af  u  Fort  of  Refuge  {Custom    of    Lloyd's,  Amended, 

1890-91). 

When  a  ship  puts  into  a  port  of  refug-e  on  account  of  accident  and 
not  in  conseqvience  of  damage  which  is  itself  the  subject  of  general 
average,  then,  on  the  assumption  that  the  ship  was  seaworthy  at  the 
commencement  of  the  voyage,  the  custom  of  Lloyd's  is  as  follows:  — 

(a)  All  cost  of  towage,  j)ilotage,  harbour  dues,  and  other  extra- 

ordinary expenses  incurred  in  order  to  bring  the  ship  and 
cargo  into  a  place  of  safety,  are  general  average.  Under 
the  term  "  extraordinar}^  expenses  "  are  not  included  wages 
or  victuals  of  crew,  coals,  or  engine  stores,  or  dtMiiurrago. 
(1876.; 

(b)  The  cost  of  discharging  the  cargo,  whether  for  the  common 

safety,  or  to  repair  the  ship,  together  Avith  the  cost  of  con- 
veying it  to  the  warehouse,  is  general  average. 

The  cost  of  discharging  the  cargo  on  account  of  damage  to 
it  resulting  from  its  own  vice  propre,  is  chargeable  to  the 
owners  of  the  cargo.     (1876.) 

(c)  The  warehouse  rent,  or  other  expenses  which  take  the  place  of 

Avarehouse  rent,  of  the  cargo  Avhen  so  discharged,  is,  exce])t 
as  under,  a  special  charge  on  the  cargo.     (1876.  i 

(d)  The  cost  of  reloading  the  cargo,  and  the  outward  port  clmrgivs 

incurred  through  leaving  the  port  of  refuge,  are,  when  tlie 
discharge  of  cargo  falls  in  general  average,  a  special  charge 
on  freight.     (1876.; 

(e)  The  expenses  referred  to  in  clause   i^d)   are  charged  to  tlie 

party  who  runs  the  risk  of  freight— that  is,  wholly  to  the 
charterer— if  the  Avhole  freight  has  been  prepaid;  and  if 
part  only,  then  in  the  proportion  which  flic  [lart  prepaid 
bears  to  the  whole  freight.     (1876.) 

(f)  When  the  cargo,  instead  of  being  sent  ashore,  is  placed  on 

board  hulk  or  lighters  during  tJie  ship's  stay  in  port,  the 
hulk-hire  is  divided  between  general  average,  cargo,  and 


808  APPENDIX  Z. 

freiglit,  ill  such  proportions  as  may  place  the  several  con- 
tributing- interests  in  nearly  the  same  relative  positions  as 
if  the  cargo  had  been  landed  and  stored. 
The  amendvie)it  is  in  the  premnble,  which  formerly  read  fJius: — 
Whe7i  a  ship  puts  into  a  port  of  refuge  on  account  of 
accide^it  or  sacrifice,  then,  on  the  assumption  that  the  ship 
ivas  seaworthy  at  the  oommeneement  of  the  voyage,  the  custom 
of  Lloyd's  is  as  folloivs : — 

21.  Treatment  of  Costs  of  Extraordinary  Discharge. 

That  no  distinction  be  drawn  in  practice  between  discharging  cargo 
for  the  common  safety  of  ship  and  cargo,  and  discharging  it  for  the 
purpose  of  effecting  at  an  intermediate  port  or  ports  of  refuge  repairs 
necessary  for  the  prosecution  of  the  voyage. 

22.  Towage  from  a  Port  of  Befuge. 

That  if  a  ship  be  in  a  port  of  refuge  at  which  it  is  practicable 
to  repair  her,  and  if,  in  order  to  save  expense,  she  be  towed  thence  to 
some  other  port,  then  the  extra  cost  of  such  towage  shall  be  divided  in 
proportion  to  the  saving  of  expense  thereby  occasioned  to  the  several 
parties  to  the  adventui'e. 

23.   Cargo  forwarded  from  a  Port  of  Refuge. 

That  if  a  ship  be  in  a  port  of  refuge  at  wliieh  it  is  practicable 
to  repair  her  so  as  to  enable  her  to  carry  on  the  whole  cargo,  but, 
in  order  to  save  expense,  the  cargo,  or  a  portion  of  it,  be  transhipped  by 
another  vessel,  or  otherwise  forwarded,  tlien  the  cost  of  such  tranship- 
ment (up  to  the  amount  of  expense  saved)  shall  be  divided  in  proportion 
to  the  saving  of  expense  thereby  occasioned  to  the  several  parties  to  the 
adventure. 

24.   Cargo  sold  at  a  Port  of  Befuge. 

That  if  a  ship  be  in  a  port  of  refuge  at  which  it  is  practicable 
to  repair  her  so  as  to  enable  her  to  carry  on  the  whole  cargo,  or  such 
portion  of  it  as  is  fit  to  be  carried  on,  but,  in  order  to  save  expense, 
the  cargo,  or  a  portion  of  it,  be,  with  the  consent  of  the  owners  of  such 
cargo,  sold  at  the  port  of  refuge,  then  the  loss  by  sale  including  loss  of 
freight  on  cargo  so  sold  (up  to  the  amount  of  expense  saved)  shall  be 
divided  in  proportion  to  the  saving  of  expense  thereby  occasioned  to  the 
several  parties  to  the  adventure;  provided  always  that  the  amount  so 
divided  shall  in  no  case  exceed  the  cost  of  transhipment  and/or  for- 
warding referred  to  in  the  preceding  rule  of  the  Association. 

25.  Interpretation  of  the  Bide  respecting  Substituted  Expenses. 

That  for  the  purpose  of  avoiding  any  misinterpretation  of  the  resolu- 
tion relating  to  the  apportionment  of  substituted  expenses,  it  is  declared 


RULES  OF  PRACTICE. 


809 


that  the  saving-  of  expense  therein  mentioned  is  limited  to  a  saving*  or 
reduction  of  the  actual  outlay,  [including  the  crew's  wages  and  pro-- 
visions,  if  any,  which  Avould  liave  been  incurred  at  the  port  of  refuge, 
if  the  vessel  had  been  repaired  there,  and  does  not  include  supposed 
losses  or  expenses,  such  as  interest,  loss  of  market,  demurrage,  or 
assumed  damage  by  discharging. 

26.  Damage  caused  to  Cargo  during  Forced  Discharge. 

That  Whenever  the  cost  of  discharging  cargo  is  general  average,  all 
loss  or  damage  necessarily  arising  to  cargo  therefrom  shall  be  allowed  in 
general  average . 

27.  Treatment  of  Damage  to  Cargo  caused  by  Discharge,  Storing,  and 

Reloading . 

The  damage  necessarily  done  to  cargo  by  discharging,  storing,  and 
reloading  it,  be  treated  as  general  average  when,  and  only  when,  the 
cost  of  those  measures  respectively  is  so  treated. 


28.  Deductions  from  Cost  of    Repairs  to  Iron  Vessels  in  adjusting 

General  Average. 

That  in  adjusting  claims  for  general  average,  repairs  to  iron  vessels 
shall  be  subject  to  the  following  deductions  in  respect  of  "  new  for 
old,"  viz.:  — 

From  Date  of  Original  Register. 

Up  to  (       All  repairs  to  be  allowed  in  full,  except  paint- 

1  year  old       ^  ing  or  coating  of  bottom,  from  which  one-third  is 
(A.)  '  to  be  deducted. 

/  One-third  to  be  deducted  oii'  repairs  to  and  re- 
newal of  boilers  and  their  mountings,  woodwork  of 
hull,  masts  and  spars,  rurniture,  upholstery, 
crockery,  metal,  and  glassware,  also  sails,  rigging, 
ropes,  sheets,  and  hawsers  (other  than  wire  and 
chain),  awnings,  covers,  and  painting. 

One-sixth  to  bo  deducted  off  wire  rigging,  ropes, 
and  hawsers,  chain  cables  and  sheets,  donkey  en- 
gines, steam  winches,  steam  cranes  and  connexions; 

V  other  repairs  in  full. 


Between 
1  and  3  years  < 
(B.) 


Between 
3  and  6  yean 

(C.) 


/  Deductions  as  above  under  Clause  B,  except  that 
'  one-sixth  be  deducted  off  ironwork  of  masts  and 
(  spars,  and  machinery  other  than  boilers. 


810 


APPENDIX  Z. 


Generally 

(F.) 


Between 
6  and  10  ;i/e<.(rs  < 
(D.) 


After 
10  ^/ears 

(E.) 


Deductious  as  above  under  Clause  C,  except  that 
one-third  be  deducted  off  ironwork  of  masts  and 
spars,  repairs  to  and  rene^val  of  all  machinery  and 
all  hawsers,  ropes,  sheets,  and  rigging;    one-sixth 
^  to  be  deducted  off  chains  and  cables. 

One-third  to  be  deducted  oil  all  repairs  and  re- 
newals, except  ironwork  of  hull  and  cementing. 
Anchors  to  be  allowed  in  full. 

One-sixth  to  be  deducted  off  chain  cables. 

The  deductions  (e.xcept  as  to  provisions  and  stores, 
machinery,  and  boilers)  to  be  regulated  by  the  age 
of  the  vessel,  and  not  the  age  of  the  particular 
part  of  her  to  which  they  apply.  Xo  painting 
bottom  to  be  allowed  if  the  bottom  has  not  been 
painted  witliin  six  months  previous  to  the  date  of 
accident.  No  deduction  to  bo  made  in  respect  of 
old  material  which  is  repaired  without  being  re- 
placed by  new,  and  provisions  and  stores  which 
\  have  not  been  iu  u.sc. 


29.  Freight  Sacrificed:  Amount  to  be  made  good  in  General  Average. 

That  the  loss  of  freig'ht  to  be  made  good  in  general  average  shall 
be  ascertained  by  deducting  from  the  amount  of  gross  freight  lost,  the 
charges  which  the  owner  thereof  would  have  incurred  to  earn  such 
freight,  but  has,  in  consequence  of  the  sacrifice,  not  incurred. 

oO.   Basis  of  Contribution  to  General  Average. 

When  property  saved  by  a  general  average  act  is  injured  or 
destroyed  by  subsequent  accident,  the  contributing  value  of  that  pro- 
perty to  a  g-eneral  average  which  is  less  than  the  total  contributing 
value,  shall,  when  it  does  not  reach  the  port  of  destination,  be  its  actual 
net  proceeds;  when  it  does  it  shall  be  its  actual  net  value  at  the  port 
of  destination  on  its  delivery  there;  and  in  all  cases  any  values  allowed 
in  general  average  shall  be  added  to  and  form  ])art  of  the  contributing 
value  as  above. 

The  above  rule  shall  not  apply  to  adjustments  made  before  the 
adventure  has  terminated. 

31.   Contributory  Value  of  Shi]}. 

That  in  any  adjustment  of  general  average  there  shall  be  set  forth 
the  certificate  on  Avhich  the  contributory  value  of  the  ship  is  based,  or,  if 
there  be  no  such  certificate,  the  information  adopted  in  lieu  thereof,  and 
any  amount  made  good  shall  be  specified. 


RULES  OF  PRACTICK.  811 

32.   Contributor  11  Value  of  Freif/Jif. 

That  freight  at  the  risk  of  the  shipowner  shall  contribute  to  general 
average  upon  its  gross  amount,  deducting  the  whole  of,  and  no  more 
than,  such  port  charges  as  the  shipowner  shall  incur  after  the  date  of 
the  general  average  act,  and  such  wages  of  the  crew  as  the  shipowner 
shall  become  liable  for  after  that  date. 

That  in  any  adjustment  of  general  average  there  shall  be  set  forth 
the  amount  of  the  gross  freight  and  the  freight  advanced,  if  any;  also 
the  2)ort  charges  and  wages  deducted,  and  any  amount  made  good. 

33.  Vessel  in  Ballast  and  under  Charter;  Contributinq  Interests. 

That  when  a  vessel  is  in  ballast  and  under  tluirter,  the  interests 
contributing  to  expenses  or  sacrifices  incurred  for  the  common  safety 
are,  in  practice,  the  ship  and  the  freight  she  is  earning  under  the 
charter,  computed  as  usual  in  the  adjustment  of  general  average,  unless 
the  expenses  are  salvage  expenses  specifically  charged  by  a  Court  of 
Law  or  by  arbitration  to  the  vessel  without  any  regard  to  the  freight. 

34.   Chartered  Freight  (ulterior) :  Contribution  to  General  Average. 

That  when  at  the  time  of  a  general  average  act  the  vessel  has  oai 
board  cargo  shipped  under  charter-party  or  bills  of  lading,  and  is  also 
under  a  separate  charter  to  load  another  cargo  after  the  cargo  then  in 
course  of  carriage  has  been  discharged,  the  vilterior  chartered  freight 
shall  not  contribute  to  the  general  average. 

35.  Deductions  fro)n   Freight  at  Charterer's  Risk. 

That  freight  at  the  risk  of  the  charterer  shall  be  subject  to  no 
deduction  for  wages  and  port  charges,  except  in  the  case  of  charters  in 
which  the  wages  or  port  charges  are  payable  by  the  charterer,  in  Avhich 
case  such  freight  shall  be  governed  by  the  same  rule  as  freight  at  the 
risk  of  the  shipowner. 

36.  Forwarding  Charges  on  Advanced  Freight. 

That  in  case  of  wreck,  the  cargo  being  forwarded  to  its  destination, 
the  charterer,  who  has  paid  a  lump  sum  on  account  of  freight,  \\  hiuh  is 
not  to  be  returned  in  the  event  of  the  vessel  being  lost,  shall  not  be 
liable  for  any  portion  of  the  forwarding  freight  and  charges,  Avhen  the 
same  are  less  than  the  balance  of  freight  payable  to  the  shipowner  at 
the  port  of  destination  under  the  original  charter-jiarty. 

37.  Adjustment :  Policies  of  Insurance  and  Names  of  Underwriters. 

That  no  statement  shall  be  drawn  up  showing  the  amount  of  ])ay- 
meuts  by  or  to  the  underwriters,  excluding  statements  of  particular 
average  on  shi])  now  dealt  witli  by  rulo  of  the  Association,  unless  the 


812  APPENDIX  Z. 

policies,  or  copies  of  policies  of  insurance,  or  certificates  of  insurance, 
for  which  the  statement  is  required,  be  produced  to  the  adjusters;  and 
that  such  statement  shall  give  the  names  of  the  underwriting  firms 
and  '.companies  interested,  and  the  amounts  due  on  the  respective 
policies  produced. 

38.  Saci-ifice  for  the  Common  Safety:    Direct  Luibiliti/  of 

L'nderivr  iters. 

That  in  case  of  general  average  sacrifice  there  is,  under  ordinary 
policies  of  insurance,  a  direct  liability  of  an  underwriter  on  ship  for  loss 
of  or  damage  to  ship's  materials,  and  of  an  underwriter  on  goods  or 
freight,  for  loss  of  or  damage  to  goods  or  loss  of  freight  so  sacrificed  as 
a  general  average  loss;  that  such  loss  not  being  particular  average  is 
not  taken  into  account  in  computing  the  memorandum  percentages, 
and  that  the  direct  liability  of  an  underwriter  for  such  loss  is  conse- 
C[uently  unaffected  by  the  memorandum  or  any  other  warranty 
respecting  particular  average. 

39.  Enforcement  of  General  Average  Lien  by  Shipowners. 

That  in  all  cases  where  general  average  damage  to  ship  is  claimed 
direct  from  the  under^vrifcers  on  that  interest,  the  average  adjusters  shall 
ascertain  -whether  the  shipowners  have  taken  tlie  necessary  steps  to 
enforce  their  lien  for  general  average  on  the  cargo,  and  shall  insert  in 
the  average  statement  a  note  giving  the  result  of  their  enquiries. 

40.   Under icriter's  Liability  (Custom  of  Lloyd's,   1876). 

If  the  ship  or  cargo  be  insured  for  more  than  its  eonti-ibutory  value, 
the  underwriter  i^ays  what  is  assessed  on  the  contributory  value.  But 
'where  insured  for  less  than  the  contributory  value,  the  underwriter  pays 
on  the  insured  value;  and  when  there  has  been  a  particular  average  for 
damage  -which  forms  a  deduction  from  the  contributorv  value  of  the 
ship  that  must  be  deducted  from  tlie  insured  value  to  find  upon  what 
the   underwriter  contributes. 

This  rule  does  not  apply  to  foreign  adjustments,  when  the  basis  of 
contribution  is  something  other  than  the  net  value  of  the  thing  insured. 

41.  The  Duty  of  Adjusters  in  Cases  involving  Refunds  of  General 

Average  Deposits  or  Apportionment  of  Salvage,  Collision 

Recoveries,  or  other  Funds. 

That  in  cases  of  general  average  where  deposits  have  been  collected 
and  it  is  likely  that  repayments  will  have  to  be  made,  measures  be  taken 
by  the  adjuster  to  ascertain  the  names  of  underwriters  Avho  have  re- 
imbursed their  assured  in  respect  of  such  deposits;  that  the  names  of 


KULE8  OF  PKACTICE.  813 

anj^  such  underwriters  be  set  t'ortJi  in  the  adjustment  as  claimants  of 
refund,  if  any,  to  which  they  are  apparently  entitled;  and  that  on 
completion  of  the  adjustment,  notice  be  sent  to  all  underwriters  whose 
names  are  so  set  forth  as  to  any  refujid  of  which  they  appear  as 
claimants  and  as  to  the  steps  to  be  tak<3n  in  order  to  obtain  payment  of 
the  same. 

That  in  cases  where  the  n^,mes  of  any  underwriters  are  not  to  be 
ascertained  on  completion  of  the  adjustment,  notice  be  sent  to  the 
Secretar}'  of  Lloyd's,  to  the  Institute  of  London  Underwriters^  to  the 
Liverpool  Underwriters'  Association,  and  to  tlie  Association  of  Under- 
writers of  Glasgow,  notifying  such  interests  as  have  not  been  appro- 
priated to  underwriters. 

And  that  in  cases  of  apportionment  of  salvage  or  other  funds  for 
distribution,  similar  measures  be  taken  by  the  adjuster  to  safeguard  the 
interests  of  any  underwriters  who  may  be  entitled  to  benefit  under  the 
apportionment. 

42.  "  Meonorcmdufn"  to  Statements  showing    Refunds  in  respect  of 

General  Average  Deposits. 

That  the  following  memorandum  shall  lappear  at  the  end  of  state- 
ments Avhich  show  refunds  to  be  due  in  respect  of  General  Average 
Deposits,  viz.:  — 

Memorandum — Refunds  of  General  Average  Deposits  shown 
in  this  statement  should  only  be  paid  on  production  of  the 
"original"  deposit  receipts. 

York-Antwerp  Eules — 

■±3.  Modification  of  York- Antwerp  Eules  in  Contracts  of  Affreight- 
ment: Liability  of  Underwriters. 

That  in  all  cases  where  the  contract  of  affreightment  provides  for 
the  application  of  York- Antwerp  Eules  in  any  modified  or  mutilated 
form,  and  when  the  policies  of  insurance  proWdo  for  the  application 
of  York-Antwerp  Eules,  if  in  accordance  with  the  contract  of  allrcight- 
ment,  in  applying  the  claim  to  such  policies  no  effect  shall  be  given  to 
York-Antwerp  Eules. 

4-1.  Alloicance  to  be  made  in  General  Average  under  York-Antwerp 
Rules  in  respect  of  the  Cost  of  Maintenance  of  Officers  and  Crew. 

That  the  amount  to  be  allowed  in  general  average  under  York- 
Antwerp  Eules  for  the  maintenance  of  officers  and  crew  shall  be  the 
actual  cost  of  such  maintenance  where  proved;  but  where  proof  of 
actual  cost  is  not  furnished  to  the  adjuster,  the  allowance  shall  bo 
determined  by  the  under-mentioned  scale;    provided   that  where  evi- 


814  APPENDIX  Z. 

dence  of  cost  is  produced,  but  is  not  conclusive,  the  allowance  shall 
represent  as  nearly  as  possible  the  actual  cost,  but  shall  not  exceed  the 
under-mentioned  scale,  viz.:  — 

Officers  (a)  Crew  (h) 

per  man  per  day  per  man  per  day 

Passenger  Steamers  (Liners)         ...         4/-  1/3 

Passenger  Sailing  Vessels  ...  ...         3/-  1/3 

Cargo  Steamers  and  Sailing  Vessels         2/6  1/3 

except  that  the  allowance  for  Lascars  shall  be  9d.  per  man  per  day,  and 
in  the  case  of  other  Asiatic  (native)  crews  shall  be  determined  by  the 
ciroumstances  of  each  case. 


(a)  To  include  the  master,  deck  officers,  and  engineers  (in  the  case  of  a  steamer), 
also  the  doctor  and  purser  (if  carried). 

(i)  To  include  the  remainder  of  the  ship's  company. 


WAREHOUSING  CLAUSES,  ETC.  ^^^^ 


APPENDIX   AA. 


WAREHOUSING  CLAUSES  OF  THE  MERCHANT  SHIPPING 
ACT,  1894,  AND  MERSEY  DOCKS  CONSOLIDATION 
ACT,  1858. 

MERCHANT   SHIPPING   ACT,  1894. 
Part  VII. — Delivery  of  Good.s. 
492.  In  this  Part  of  this  Act  unless  the  eoutext  otherwise  re-  Definitions 

under 

quires—  Part  VII. 

The  expression  "  goods  "  includes  every  description  ol'  wares 

and  merchandise: 
The  expression  "  whari'  "  includes  all  wharves,  quays,  docks. 

and  premises  in  or  upon  which  any  goods,  when  landed 

from  ships,  may  be  lawfully  placed: 
The    expression    "  warehouse "    includes    all    warehouses, 

buildings,  and  premises  in  which  goods,  when  landed  from 

ships,  may  be  lawfully  placed: 

***** 

The  expression  "  shipowner "'  includes  the  master  of  the 
ship  and  every  other  person  authorised  to  act  as  agent  for 
the  owner  or  entitled  to  receive  the  freight,  demurrage, 
or  other  charges  payable  in  respect  of  the  ship: 

The  expression  "owner"  used  in  relation  to  goods  means 
every  person  who  is  for  the  time  being  entitled,  either  as 
owner  or  agent  for  the  owner,  to  the  possession  of  the 
goods,  subject  in  the  case  of  a  lien  (if  any),  to  that  lien: 

The  expression  "wharfinger"  means  the  occupier  of  a 
wharf  as  herein-beforo  defined: 

The  expression  "warehouseman"  means  the  occupier  of  a 
warehouse  as  herein -before  defined. 

494.  If  at  the  time  when  any  goods  are  landed  from  any  ship,  Lien  for 

.       •'    °  I       r>  freiprnt  on 

and  placed  in  the  custody  of  any  person  as  a  wharlinger  or  ware-  la^diug 

houseman,  the  shipowner  gives  to  the  wharfinger  or  warehouseman  i,'oods. 

notice  in  writing  that  the  goods  are  to  remain  subject  to  a  lien  for 

freight  or  other  charges  payable  to  the  shipowner  to  an  amount 


816 


APPENDIX  AA. 


mentioned  in  the  notice,  the  goods  so  landed  shall,  in  the  hands 
of  the  wharfinger  or  warehouseman,  continue  subject  to  the  same 
lien,  if  any,  for  such  charges  as  they  were  subject  to  before  the 
landing  thereof;  and  the  wharfinger  or  warehouseman  receiving 
those  e:oods  shall  retain  them  until  the  lien  is  discharged  as  herein- 
after  mentioned,  and  shall,  if  he  fails  so  to  do,  make  good  to  the 
shipowner  any  loss  thereby  occasioned  to  him. 


Discharge 

(if  lien. 


Provisions  as 
to  deposits 
by  owners  of 
goods. 


495.  The  said  lieu  for  freight  and  other  charges  shall  be  dis- 
charged— 

(1)  Upon  the  production  to  the  wharfinger  or  warehouseman 

of  a  receipt  for  the  amount  claimed  as  due,  and  de- 
livery to  the  wharfinger  or  warehouseman  of  a  copy 
thereof  or  of  a  release  of  freight  from  the  shipowner, 
and 

(2)  Upon  the  deposit  by  the  owner  of  the  goods  with  the 

wharfinger  or  warehouseman  of  a  sum  of  money 
equal  in  amount  to  the  sum  claimed  as  aforesaid  by 
the  shipowner; 

but  in  the  latter  case  the  lien  shall  be  discharged  without  prejudice 
to  any  other  remedy  which  the  shipowner  may  have  for  the  re- 
covery of  the  freight. 

496. — (Ij  When  a  deposit  as  aforesaid  is  made  with  the 
wharfinger  or  warehouseman,  the  person  making  the  same  may, 
within  fifteen  days  after  making  it,  give  to  the  wharfinger  or  ware- 
houseman notice  in  writing  to  retain  it,  stating  in  the  notice  the 
sums,  if  any,  which  he  admits  to  be  payable  to  the  shipowner,  or, 
as  the  case  may  be,  that  he  does  not  admit  any  sum  to  be  so  pay- 
able, but  if  no  such  notice  is  given,  the  wharfinger  or  warehouse- 
man may,  at  the  expiration  of  the  fifteen  days,  pay  the  sum  de- 
posited over  to  the  shipowner. 

(2)  If  a  notice  is  given  as  aforesaid  the  wharfinger  or  warehouse- 
man shall  immediately  apprize  the  shipowner  of  it,  and  shall  pay 
or  tender  to  him  out  of  the  sum  deposited  the  sum,  if  any,  admitted 
by  the  notice  to  be  payable,  and  shall  retain  the  balance,  or,  if 
no  sum  is  admitted  to  be  payable,  the  whole  of  the  sum  deposited, 
for  thirty  days  from  the  date  of  the  notice. 

(3)  At  the  expiration  of  those  thirty  days  unless  legal  proceedings 
have  in  the  meantime  been  instituted  by  the  shipowner  against 
the  owner  of  the  goods  to  recover  the  said  balance  or  sum,  or  other- 
wise for  the  settlement  of  any  disputes  which  may  have  arisen 
between  them  concerning  the  freight  or  other  charges  as  afore- 
said, and  notice  in  writing  of  those  proceedings  has  been  served  on 


WAREHOUSING  CLAUSES,  ETC.  ^^'^ 

the  wharfinger  or  warehouseman,  the  wharfinger  or  warehouseman 
shall  pay  the  balance  or  sum  to  the  owner  of  the  goods. 

(4)  A  wharfinger  or  warehouseman  shall  by  any  payment  under 
this  section  be  discharged  from  all  liability  in  respect  thereof. 

497. — (1)  If  the  lien  is  not  discharged,  and  no  deposit  is  made  Sale  of  goods 
as  aforesaid,  the  wharfinger  or  warehouseman  may,  and,  if  required  ^^u^^^an 
by  the  shipowner,  shall,  at  the  expiration  of  ninety  days  from  the 
time  when  the  goods  were  placed  in  his  custody,  or,  if  the  goods  are 
of  a  perishable  nature,  at  such  earlier  period  as  in  his  discretior 
he  thinks  fit,  sell  by  public  auction,  either  for  home  use  or  for  ex- 
portation, the  goods  or  so  much  thereof  as  may  be  necessary  to 
satisfy  the  charges  herein-after  mentioned. 

(2)  Before  making  the  sale  the  wharfinger  or  warehouseman  shall 
give  notice  thereof  by  advertisement  in  two  local  newspapers  circu- 
lating in  the  neighbourhood,  or  in  one  daily  newspaper  published 
in  London,  and  in  one  local  newspaper,  and  also,  if  the  address  of 
the  owner  of  the  goods  has  been  stated  on  the  manifest  of  the 
cargo,  or  on  any  of  the  documents  which  have  come  into  the  pos- 
session of  the  wharfinger  or  warehouseman,  or  is  otherwise  known 
to  him,  send  notice  of  the  sale  to  the  owner  of  the  goods  by  post. 

(3)  The  title  of  a  bond  fide  purchaser  of  the  goods  shall  not  be 
invalidated  by  reason  of  the  omission  to  send  the  notice  required  by 
this  section,  nor  shall  any  vsuch  purchaser  be  bound  to  inquire  whether 
the  notice  has  been  sent. 

498.  The  proceeds  of  sale  shall  be  applied  by  the  wharfinger  or  Application 
warehouseman  as  follows,  and  in  the  following  order:  of  ^g^^ 

(i)  First,  if  the  goods  are  sold  for  home  use,  in  payment  of  any 

customs  or  excise  duties  owing  in  respect  thereof;  then 
(ii)  In  payment  of  the  expenses  of  the  sale;  then 
(iii)  In  payment  of  the  charges  of  the  wharfinger  or  ware- 
houseman and  the  shipowner  according  to  such  priority  as 
may  be  determined  by  the  terms  of  the  agreement  (if 
any)  in  that  behalf  between  them;  or,  if  there  is  no  such 

agreement:  — 

(a)  in  payment  of  the  rent,  rates,  and  other  charges 
due  to  the  wharfinger  or  warehouseman  in  respect  of 
the  said  goods;  and  then 

(b)  in  payment  of  the  amount  claimed  by  the  ship- 
owner as  due  for  freight  or  other  charges  in  respect  of 
the  said  goods; 

and  the  surplus,  if  any,  shall  be  paid  to  the  owner  of  the  goods. 

499.  Whenever  any  goods  are  placed  in  the  custody  of  a  whar-  W.^'-fJ'o^us^^- 
finger  or  warehouseman,  under  the  authority  of  this  Part  of  this  ^^^  expenses. 

3  G 


818 


APPENDIX  AA. 


Warehouse- 
men's pro- 
tection. 


Saving  for 
powers  under 
local  Acts. 


Act,  the  wharfinger  or  warehouseman  shall  be  entitled  to  rent  in 
respect  of  the  same,  and  shall  also  have  power,  at  the  expense  of  the 
owner  of  the  goods,  to  do  all  such  reasonable  acts  as  in  the  judg- 
ment of  the  wharfinger  or  warehouseman  are  necessary  for  the  proper 
custody  and  preservation  of  the  goods,  and  shall  have  a  lien  on  the 
goods  for  the  rent  and  expenses. 

500.  Nothing  in  this  Part  of  this  Act  shall  compel  any  Avhar- 
finger  or  warehouseman  to  take  charge  of  any  goods  which  he  Avould 
not  have  been  liable  to  take  charge  of  if  this  Act  had  not  been 
passed;  nor  shall  he  be  bound  to  see  to  the  validity  of  anj'  lien 
claimed  by  any  shipowner  under  this  Part  of  this  Act. 

501.  Nothing  in  this  Part  of  this  Act  shall  take  away  or  abridge 
any  powers  given  by  any  local  Act  to  any  harbour  authority,  body 
corporate,  or  persons,  whereby  they  are  enabled  to  expedite  the 
discharge  of  ships  or  the  landing  or  delivery  of  goods;  nor  shall 
anything  in  this  Part  of  this  Act  take  away  or  diminish  any  rights 
or  remedies  given  to  any  shipowner  or  wharfinger  or  warehouseman 
by  any  local  Act. 


Goods  to 
remain 
subject  to 
freight. 


Notice  may 
be  given  to 
the  Board  to 
detain  goods 


WAREHOUSING  CLAUSES  OF  THE  MERSEY  DOCKS 
CONSOLIDATION  ACT  (1858). 

(applicable  to  all  ships  IX  THE  LIVERPOOL  CLOSE  DOCKS.) 

§  7. — As  to  Detention  of  Goods  for  Freight. 

CXCIII.  All  goods  warehoused  by  the  Board  or  deposited  in  any 
of  their  warehouses  by  any  person  having  or  claiming  an  interest  in 
such  goods,  or  by  the  owner  or  master  of  the  vessel  out  of  which  the 
same  may  have  been  warehoused,  or  by  any  person  interested  in  the 
freight  of  such  vessel  or  entitled  to  or  claiming  the  benefit  of  any 
other  claim  or  lien  whatsoever  to  which  the  goods  were  subject  while 
the  same  were  on  board  any  vessel  and  before  the  warehousing 
thereof,  shall  continue  liable  to  such  and  the  same  claim  or  lien  for 
freight,  and  also  to  all  other  claims  or  liens  whatsoever  in  favour 
of  the  owner  or  master  of  such  vessel,  or  of  any  other  person 
interested  in  such  goods  or  in  the  freight  of  the  same,  or  entitled  to 
or  claiming  the  benefit  of  any  other  claim  or  lien  thereon,  as  such 
goods  were  liable  to  whilst  the  same  were  on  board  such  vessel  and 
before  the  warehousing  thereof. 

CXCIV.  And  if  notice  in  writing  to  detain  such  goods  shall  be 
given  to  the  Board  by  such  owner,  or  master,  or  other  person  in- 
terested as  aforesaid,  the  Board  shall  detain  and  keep  such  goods  in 


i 


WAREHOUSING  CLAUSES,  ETC.  ^^^ 

their  warehouses  until  such  claims  or  liens,  together  with  all  rates,  until  freight, 

rents,  and  charges  to  which  the  same  shall  have  become  subject  or  fied,  or  deposit 

liable,  shall  be  paid,  or  until  such  rates,  rents,  and  charges  shall  be  paid. 

paid,  and  a  deposit  equal  in  amount  to  the  demand  made  by  the  owner 

or  master  of  the  vessel,  or  other  person  interested  as  aforesaid,  for  or 

on  account  of  any  such  claim  or  lien  as  aforesaid,  shall  have  been 

made  by  the  owner  of  such  goods,  which  deposit  the  Board  shall 

receive  and  hold  in  trust  until  the  amount  due  in  respect  of  such 

claim  or  lien  shall  have  been  tendered  or  satisfied;  when,  upon  proof 

thereof  being  given  to  the  Board,  and  payment  made  to  them  of 

all  rates,  rents,  and  charges,  if  any,  due  upon  such  goods,  such  deposit 

shall  be  returned  upon  demand  to  the  person  by  whom  the  same  was 

made,  or  to  his  executors,  administrators,  or  assigns. 

CXCV.  Nevertheless  such  deposit  shall  be  considered  as  made  in  Deposit  to  be 
payment  of  the  claim  or  lien  in  respect  of  which  such  deposit  shall  J^^|^  f^  ^^^^ 
have  been  made;  and  the  Board,  on  the  expiration  of  fifteen  days  ment  of  claim, 
next  after  any  such  deposit  shall  have  been  made,  and  in  case  notice 
in  Avriting  to  retain  the  amount  of  such  deposit  shall  not  in  the  mean- 
time have  been  given  to  the  Board  by  some  person  claiming  to  be 
entitled  to  such  goods,  shall  (out  of  so  much  of  the  said  deposit  as 
shall  remain  after  deducting  and  retaining  the  rates,  rents,  and 
charges,  if  any  then  due  to  the  Board  on  the  goods  in  respect  of 
which  such  deposit  shall  have  been  made,  and  all  other  expenses,  if 
any,  incurred  by  the  Board  in  respect  thereof)  pay  to  the  master  or 
owner  of  the  vessel  from  which  such  goods  shall  have  been  ware- 
housed, or  other  person  entitled  to  or  interested  in  such  claim  or  lien, 
the  amount  of  his  claim  or  lien;  and  the  payment  so  made  by  the 
Board  shall  release  and  discharge  them  from  all  claims  and  demands 
whatsoever  in  respect  of  so  much  of  such  deposit  as  they  shall  have 
paid  to  such  master,  owner,  or  other  person  interested  as  aforesaid. 

CXCVI.  But  such  notice  to  the  Board  to  retain  the  amount  of  any  Notice  to  have 
such  deposit  as  aforesaid  shall  not  continue  to  operate  or  have  effect  .f^^^^^  j''^'^.^ 
for  a  longer  period  than  thirty  days  from  the  service  thereof,  unless  „nly,  unle.-s 
some  action,  suit,  or  other  proceeding  at  law  or  in  equity  for  deter-  JJ^^j^j^^^ 
mining  the  title  or  liability  to  the  claim  or  lien  in  respect  of  which 
such  deposit  shall  have  been  made,  or  the  right  to,  or  the  ownership 
of,  such  deposit,  shall  in  the  meantime  be  actually  commenced,  and 
notice  in  writing  thereof  served  on  the  Board  or  their  solicitor. 

CXCVII.  If  such  deposit  shall  not  be  made  within  ninety  days  Powcrofsala 
next  after  any  such  goods  shall  have  been  warehoused,  and  in  case  j^^/j^^^^^^^ 
notice  to  detain  such  goods  shall  have  been  given  as  aforesaid,  the 
Board  may  sell  all  or  any  part  of  such  goods,  and  may,  out  of  the 
proceeds  thereof,  in  the  first  place,  pay  the  duties  (if  any)  payable 

3  G  2 


820 


APPENDIX  AA. 


The  power  of 
sale  not  to 
be  exercised 
till  after 
notice. 


Notice  to 
detain  goods 
must  be  given 
before  war- 
rants issued 
for  delivery. 


to  the  Commissioners  of  Customs  or  Inland  Revenue,  and  also  retain 
and  pay  the  rates  and  charges  payable  to  the  Board,  and  the  expenses 
of  such  sale,  and  in  the  next  place  may  pay  the  freight  and  other 
claims  or  liens  to  which  such  goods  may  be  liable,  rendering  the 
overplus  (if  any)  to  the  person  entitled  thereto,  on  demand. 

CXCVIII.  No  such  sale  shall  be  made  by  the  Board  until  ten 
days'  previous  notice  in  writing  of  such  claim  or  lien  thereon  as 
aforesaid,  and  of  the  intention  to  sell  the  same  goods  for  satisfaction 
thereof,  shall  have  been  given  to  the  owner  thereof,  if  his  name  and 
residence  or  place  of  business  shall  appear  on  the  manifest  of  the 
cargo,  or  shall  have  been  entered  in  the  books  at  the  warehouse  in 
which  such  goods  shall  have  been  deposited,  by  sending  such  notice  in 
a  registered  letter  by  post  to  such  residence  or  place  of  business ;  and 
if  such  owner  shall  not  be  known,  then,  until  ten  days  after  such 
notice  shall  have  been  inserted  once  in  some  newspaper  published 
in  London,  and  in  two  newspapers  published  in  Liverpool,  and  also 
posted  in  the  Exchange  News-room  at  Liverpool,  if  so  permitted  by 
the  proprietors  or  persons  having  the  management  of  such  News- 
room; and  the  Board  shall  not  sell  a  greater  portion  of  such  goods 
than  shall,  in  their  judgment,  be  sufficient  to  cover  the  amount  of 
the  said  duties,  rents,  charges,  and  expenses,  and  of  such  claim  or 
lien  as  aforesaid. 

CXCIX.  Notice  to  detain  goods  for  payment  of  freight,  or  any 
other  claims  or  liens  to  which  such  goods  were  liable  whilst  on  board 
any  vessel,  and  before  the  warehousing  thereof,  shall  not  be  available 
unless  the  same  shall  be  given  to  the  Board  before  the  issue  by  them 
of  a  warrant  for  the  delivery  of  su.ch  goods  as  next  hereinafter  men- 
tioned. 


Lloyd's  average  boxd  and  guarantee.  ^'-^^ 


APPENDIX  BB. 


LLOYD'S  AVERAGE  BOND. 


AN  AGREEMENT  made  this  day  of  19 

Between  Master  of  the  Ship  or  Vessel  called  the 

and  the  several  Persons  whose  names  or  Firms  are 
set  and  subscribed  hereto,  being  respectively  consignees  of 
Cargo  on  Board  the  said  Ship  of  the  other  part 
Whereas  the  said  Ship  lately  arrived  in  tlie  Port  of 
on  a  voyage  from  and  it  is  alleged  that  during  such 

voyage  she  met  with  bad  weather  and  sustained  damage  and 
loss  and  that  sacrifices  were  made  and  expenditure  incurred 
•which  may  form  a  Charge  on  the  Cargo  or  some  part  thereof 
or  be  the  subject  of  a  Salvage  and/or  a  general  average  con- 
tribution, but  the  same  cannot  be  immediately  ascertained, 
and  in  the  meantime  it  is  desirable  that  the  cargo  shall  be 
delivered;    Nov^'  T^ierefore  These  Presents  Witness  and 
the  said  Master  on  his  own  behalf  and  on  behalf  of  his  Owners 
in  consideration  of  the  agreement  of  the  parties  hereto  of 
the  second  part  hereinafter  contained,  hereby  agrees  with  the 
respective  parties  hereto  of  tlie  second  part  that  he  will  de- 
liver to  them  respectively  their  respective  consignments  on 
payment  of  the  freight  payable  on  delivery,  if  any,  and  the 
said  parties  hereto  of  the  second  part  in  consideration  of  the 
said  Agreement  of  the  said  Master  for  themselves  severally 
and  respectively,  and  not  the  one  for  tlie  others  of  them, 
hereby  agree  with  the  said  Master  that  they  will  pay  to  the 
said  Master  or  the  Owners  of  the  said  Sliip  the  proper  and 
respective  proportion  of  any  Salvage  and/or  general  average 
and/or     particular     and/or    other    charges    wliich     may    be 
chargeable  upon  their  respective  consignments  or  to  which 
the  Shippers  or  Owners  of  such  consignments  may  be  liable 
to  contribute  in  respect  of  such  damage,  loss,  sacrifice,  or 
expenditure,  and  the  said  parties  hereto  of  the  second  part, 
further    promise    and    agree    forthwith    to    furnish    to    the 
Captain  or  Owner  of  the  said  Ship  a  correct  account  and 


8-32 


APPENDIX  BB. 


This  addition 
to  be  made  to 
the  agreement 
in  those  cases 
which  justify 
the  ship- 
owners in 
asking  for  a 
deposit. 


This  addition 
to  be  made 
when  ad 
interim  pay- 
ments may 
have  to  be 
made  by  the 
trustees. 


particulars  of  the  value  of  the  goods  delivered  to  them 
respectively,  in  order  that  any  such  Salvage  and/or  general 
average  and/or  particular  and/or  other  charges  may  be  ascer- 
tained and  adjusted  in  the  usual  manner. 

And  whereas  at  the  request  of  the  owner  of  the  said  Ship  the 
parties  hereto  of  the  second  part  have  respectively  deposited  or 
agreed  to  deposit  in  the  Bank  of  in  the  joint  names  of 

nominated  on  behalf  of  the  shipowners  and  nominated  on 

behalf  of  such  Depositors  the  sum  of  £  per  cent,  on  the 

amount  of  the  estimated  value  of  their  respective  interests.  Now  it  is 
hereby  further  agreed  that  the  sum  so  deposited  by  the  said  parties 
respectively  shall  be  held  as  security  for  and  upon  trust  for  the  pay- 
ment to  the  parties  entitled  thereto,  of  tlie  Salvage  and/ or  general 
average  and/or  particular  and/or  other  charges  payable  by  the  said 
parties  hereto  of  the  second  part  respectively  as  aforesaid,  and  sub- 
ject thereto  upon  trust  for  the  said  Depositors  respectively. 

.  Provided  always  that  the  said  Trustees  ma}-  from  time  to  time, 
pending  the  preparation  of  the  usual  statement,  pay  to  the  said 
parties  of  the  first  part  in  respect  of  the  amounts  which  may  ulti- 
mately be  found  due  from  the  said  depositors  respectively,  and  pay 
or  refund  to  the  parties  hereto  of  the  second  part  or  any  of  them  in 
respect  of  the  amounts  which  may  ultimately  be  found  due  to  them, 
such  sums  out  of  the  said  deposits  as  may  from  time  to  time  be  certi- 
fied by  the  Adjuster  or  Adjusters  who  may  be  employed  to  adjust  the 
said  Salvage  and.  or  general  average  and /or  particular  and/or  other 
charges  to  be  a  proper  sum  or  proper  sums  to  be  advanced  by  the 
said  Trustees  on  account  of  the  said  amounts.  And  it  is  hereby  de- 
clared and  agreed  that  any  payment  or  payments  on  account  which 
shall  bo  made  by  the  said  Trustees  under  or  in  accordance  with  the 
statement  or  in  pursuance  of  any  Certificate  to  be  made  or  given 
by  the  said  Adjusters  as  aforesaid  shall  discharge  such  Trustees  from 
all  liability  in  respect  of  the  amounts  so  paid;  and  it  shall  not  be 
necessary  for  them  to  inquire  into  the  correctness  of  the  Statement  or 
Certificate.  Provided  always  that  the  deposits  so  to  be  made  as 
aforesaid  shall  be  treated  as  payments  made  without  prejudice  and 
without  admitting  liability  in  respect  of  the  said  alleged  Salvage 
andjor  general  average  and/or  particular  and  'or  other  charges,  and 
as  though  the  same  had  been  made  by  the  depositors  respectively 
for  the  purpose  only  of  obtaining  delivery  of  their  goods;  and  in 
like  manner  all  amounts  returned  by  the  Trustees  to  the  depositors 
shall  be  received  by  the  latter  respectively  without  prejudice  to  any 
claim  which  the  Master  or  Owners  of  the  said  ship  may  have  against 
them  respectively.  And  nothing  herein  contained  shall  constitute 
the  said    Adjuster    or    Adjusters  an  arbitrator  or    arbitrators,  or 


Lloyd's  average  bond  and  guarantee.  823 

render  his  or  their  Certificate  or  Statement  binding  upon  any  of 
the  parties. 

In  Witness 


LLOYD'S  GENERAL  AVERAGE  GUARANTEE. 

Guarantee  by  Lloyd's  to  the  Shipowner. 

Vessel 

Voyage  and  Date 

In  consideration  of  the  immediate  delivery  to  the  consignees 
thereof  of  the  merchandise  specified  below,  the  Corporation  of 
Lloyd's  hereby  undertakes  to  pay  to  the  Shipowners  any  contribu- 
tion for  general  average  and/or  salvage  and/or  other  charges  which 
may  hereafter  be  ascertained  to  be  due  in  respect  of  the 
said  merchandise. 

Descri]ption — 


Secretary  of  Lloyd's. 
Lloyd's,  ,  19     .' 


824  APPENDIX  CC. 


APPENDIX  CC. 


RULES  OF  PRACTICE  OF  THE  ASSOCIATION  OF  AVERAGE 
ADJUSTERS  OF  THE  UNITED  STATES. 

(Effective  on  December  12th,  1910.) 
I. — Compensation  and  Expenses  of  Master. 

"Where  the  voyage  is  broken  up  by  reason  of  shipAvreck  or  con- 
demnation of  the  ship  at  a  place  short  of  the  port  of  destination,  the 
master  shall  be  entitled  to  compensation  from  the  general  interests  for 
the  time  necessarily  occupied  by  him  in  transacting  the  business  grow- 
ing out  of  the  disaster  until  his  departure  thence  for  the  home  port 
•with  the  proceeds,  general  accounts  and  vouchers. 

He  shall  also  be  entitled  to  a  reasonable  indemnification  for  his 
necessary  expenses  and  services  in  returning  to  the  home  port  when 
needed  or  required,  by  the  pecixliar  circumstances  of  the  case,  to  justify 
his  acts  at  the  place  of  disaster,  or  to  give  information,  not  otherwise 
afforded,  to  finally  adjust  and  apportion  the  average  charges  to  be 
paid  by  the  general  or  special  interests  for  whom  such  services  are 
performed,  to  be  determined  by  the  nature  of  the  case. 

These  rules  shall  apply  whether  the  vessel  be  in  ballast  or  with 
cargo. 

II. — Interest  on  Allowances  in  General  Average. 

Where  allowances,  sacrifices  or  expenditures  are  charged  or  made 
good  in  general  average,  interest  shall  be  allowed  thereon  at  the  legal 
rate  prevailing  at  the  place  of  adjustment. 

III. — Deck  Load  Jettison. 

Where  cargo  consisting  of  one  kind  of  goods  is,  in  accordance  with 
a  custom  of  trade,  carried  on  and  under  deck,  that  portion  of  the  cargo 
loaded  on  deck  shall  be  subject  to  the  same  rules  of  adjustment  in  case 
of  jettison  and  expenses  incurred,  as  if  the  same  were  laden  under  deck. 

IV. — Loss  of  Freight  on  Cargo  Sacrificed. 

When  loss  of  freight  on  cargo  sacrificed  is  allowed  in  general  average, 
the  allowance  shall  be  for  the  net  freight  lost,  to  be  ascertained  by 


KULES  OF  PRACTICE.  825 

deducting-  from  the  gross  freight  tlie  expenses  that  would  have  been 
incurred  subsequent  to  the  sacrifice  to  earn  it. 


When  salvage  services  are  rendered  to  a  vessel,  or  she  becomes  dis- 
abled and  is  necessarily  towed  to  her  port  of  destination,  and  the 
expenses  of  such  towage  are  allowable  in  general  average,  there  shall  be 
credited  against  the  allowance  such  ordinary  expenses  as  would  have 
been  incurred,  but  have  been  saved  by  the  salvage  or  towage  services. 

Yl.— Credits  for  Old  Material. 

Where  old  material  is  replaced  by  new,  credit  shall  be  given  in  the 
average  statement  for  the  value  or  proceeds  of  the  old  material,  or,  if 
there  is  no  credit,  the  adjuster  shall  insert  a  note  in  explanation. 

VII. — Approval  of  Repair  Accounts. 

All  repair  accounts  shall  be  examined,  when  practicable,  by  the 
owners'  surveyor  and  a  surveyor  for  underwriters  before  the  statement 
is  issued. 

The  adjuster  shall  insert  a  note  in  the  average  statement  that  this 
has  been  done  and  the  result  of  same. 

VIII. — Scraping  and  Painting  Bottom  of  Vessel. 

The  cost  of  scraping  and  painting  the  bottom  of  a  vessel  consequent 
upon  repairs  which  are  recoverable  in  average  shall  be  allowed,  unless 
the  vessel,  at  the  time  of  drydocking,  is  due  in  the  ordinary  course  for 
bottom  painting,  according  to  the  custom  of  the  owners,  or,  in  the  case 
of  a  vessel  employed  in  salt  water  navigation,  unless  the  bottom  has 
not  been  painted  within  one  year. 

When  the  cost  of  scraping  and  painting  the  bottom  is  allowed,  the 
adjuster  shall  insert  a  note  in  the  average  statement  giving  the  date  of 
the  last  painting  and  the  date  on  which,  in  the  ordinary  course,  Ihe 
vessel  would  have  been  due  for  repainting  bottom. 

IX. —Dry  dock  big  Charges  and  Expenses  Incidental  to  Drydocldng— 

Particular  Average. 

When  a  vessel  is  drydockcd:  — 

(1)  For  owners'  account  and  repairs  are  found  necessary  for 

Avhich    underwriters  are    liable  and  A^•]lich  can  only  be 
effected  in  drydoek;  or 

(2)  For    survey    and  or    repairs    for    which    underwriters    are 

liable  and  repairs  for  owners'  account  are  made  which  are 
immediately  necessary  for  her  seaworthiness,  or  she  is 


826  APPENDIX  CC. 

due    for  ordinary  drydocking   (in  accordance  with    the 

owners'  custom), 
the  cost  of  removing  the  vessel  to  and  from  the  drydock,  of  docking 
and  undocking,  and  as  much  of  the  dock  dues  as  is  common  to  both 
classes  of  work,  shall  be  divided  equally  between  the  owners  and  under- 
writers. 

When  the  vessel  is  dry  docked  for  underwriters'  account  and  the 
owners  avail  of  her  being  in  drydock  to  scrape  and  paint  or  to  do  other 
work  for  their  own  account  which  is  not  immediately  necessary  for  sea- 
worthiness, all  the  expenses  incidental  to  the  drydocking  of  the  vessel 
shall  be  charged  to  the  underwriters. 

The  adjuster  shall  insert  a  note  in  the  average  statement  in  explana- 
tion of  the  allowances  made. 

X. — Overtime  Work — Particular  Average. 

The  bonus  or  extra  cost  for  overtime  work  on  repairs  shall  be 
allowed  up  to  the  amount  of  the  saving  of  drydock  dues  or  other 
charges,  which  otherwise  would  have  been  incurred. 

The  adjuster  shall  insert  a  note  in  the  average  statement  in  ex- 
planation of  the  allowances  made. 

XI. — Temporary  Repairs — Particular  Average. 

The  cost  of  reasonable  temporary  repairs  shall  be  allowed:  — 

When  made  in  order  to  effect  a  saving  in  the  cost  of  permanent 
repairs ; 

When  complete  repairs  cannot  be  made  at  the  port  where  the 
vessel  is; 

When  the  materials  or  parts  necessary  for  permanent  repairs  are 
unobtainable  at  the  port  where  the  vessel  is,  except  after  unreasonable 
delay . 

The  adjuster  shall  insert  a  note  in  the  average  statement  in 
explanation  of  the  allowances  made. 

XII. — Allowance  in  Respect  of  Provisions. 

When  allowance  is  made  in  general  average  for  provisions  of  Master, 
officers  and  crew  the  allowance  shall  be  on  tJie  following  scale: — 

Master       $1.00  per  day. 

Officers  and  Engineers   ...  ...  ...         ...  .75     ,,       ,, 

Crew^  ...  ...  ...  ...         ...         ...  .50     „       „ 

This  rule  shall  apply  to  tlie  Atlantic  Coast  ports  of  the  United  States 
and  to  ports  in  the  Gulf  of  Mexico. 


INDEX. 


Abuse  of  sails,  spars,  hawsers,  and  the  like,  how  treated,  11.),  117.- 

Adjustment, 

rule  60  to  adjust  a,s  to  make  it  immaterial  whose  property  is  taken 

in  the  first  instance,  42. 
of  general  average,  place  of.     See  Place  of  Adjustment. 
effect  of  subsequent  accident  upon,  132,  300,  311. 
practice  to  adjust  on  state  of  facts  at  termination  of  adventure, 

301. 
arguments  in  favour  of  this  practice,  302. 
objections  to  it  in  the  case  of  expenditure,  305. 
adjustment  of  disbursements,  319. 

cost  of  raising  funds,  319. 

sale  of  cargo  to  raise  funds,  321. 

raising  funds  by  bottomry  loan  on  cargo,  327. 
mode  of  stating  losses  of  cargo,  335,  336. 
in  case  of  arrival,  market  value  at  that  time,  336. 
contribution  from  amount  allowed  in  general  average,  336,  353, 
how,  if  cargo  sold  "  afloat  "  or  "  to  arrive,"  337. 
in  case  jettisoned  goods  are  or  would  have  been  damaged,  337. 
effect  of  subsequent  accident,  338. 
in  case  voyage  is  broken  up,  339. 
mode  of  stating  losses  of  freight,  339,  340. 

in  case  the  freight  was  prepaid,  340. 
mode  of  stating  damage  to  ship,  341. 
deduction. of  one-third,  rules  as  to,  342. 
no  deduction  on  first  voyage,  344. 
replacing  new  parts  of  old  ship,  345. 

rules  of  Average  Adjusters'  Association  as  to  deductions.  346. 
rule  when  ship  is  not  repaired,  347.  , 

Admiralty  Court, 

basis  of  payment  of  salvage,  as  settled  by,  175. 
jurisdiction  in  cases  of  general  average,  404,  406. 

Advance  Freight, 

treatment  of  reloading  charges  when  freight  prepaid,  231.  261. 
not  deducted  from  value  of  jettisoned  goods,  340. 


828  INDEX. 

Advance  Freight — continued. 

shipowner  does  not  contribute  in  respect  of,  354. 
contributory  value  of  goods  increased  by  amount  of,  355. 

but  not  when  voyage  broken  up  at  port  of  loading,  355. 
justification  of  rule  that  charterer  liable  to  contribute  for,  369. 
when  an  advance  is  a  prepayment  of  freight,  370. 

Affreightment, 

contract  of,  how  afPected  by  condemnation  of  ship,  272. 
by  w^hat  law  governed,  277. 

Ammunition,  expenditure  of,  in  resisting  enemy,  not  general  aver- 
age, 116. 

Amount  to  be  made  good, 
for  disbursements,  319. 
for  losses  of  cargo,  335. 
for  losses  of  freight,  339. 
for  damage  to  ship,  341. 

when  not  repaired,  347. 
brought  in  to  contribute,  336,  353. 

Anchor, 

cut  away  when  previously  washed  off  bows,  131. 
how  treated,  when  cut  away  because  foul,  133. 

when  run  out  too  far  to  be  hove  in,  133. 
lost  by  suddenly  letting  go,  to  avoid  a  danger,  136. 
not  subject  to  deduction  of  one-third,  342,  347. 

Argentine  Republic,  law  of,  422. 

Austria,  law  of,  452. 

Average, 

early  instance  (a.d.  1341)  of  use  of  the  word,  9. 
theories  as  to  the  origin  of  the  word,  11. 
See  Expenditure,  Sacrifice. 

Average  Adjusters,  practice  of,  not  necessarily  a  custom,  87,  225, 
229. 

Average  Adjusters'  Association, 

rules  of,  as  regards  general  average,  803. 
to  jettison  of  deck  cargo,  76. 
port  of  refuge,  250. 
substituted  expenses,  271. 
thirds,  346. 

Average  Agreements.     See  Average  Bond. 

Average  Bond, 

practice  to  take,  from  consignee  of  cargo,  385,  394. 
difference  as  to  conditions  of,  between  London  and  Liverpool, 
395. 


INDEX.  829 

AvTERAGE  Bond — continued. 

unreasonable,  when  it  makes  adjuster  an  arbitrator,  399,  401. 

or  gives  shipowner  control  of  deposit,  399,  401,  402. 
form  of  Lloyd's,  821. 

Bank  Notes,  whether  they  contribute,  381. 

Belgium,  law  of,  457. 

Bilbao,  Ordinance  of,  17. 

Bill  of  Lading  Freight, 

only  allowed  in  general  average,  and  not  chartered  freight,  341. 
contributes,  and  not  chartered  freight,  when  charterer  carries 
goods  of  third  party,  366. 

Boats, 

sacrificed  after  having  been  washed  to  leeward,  132. 
damaged  in  carrying  out  kedges  to  heave  stranded  ship  afloat, 
138. 

Bottomry,  raising  funds  by  loan  on  cargo,  327. 

Brazil,  law  of,  478. 

Breaking  up  of  Voyage.     See  Voyage. 

Cable,  cut  for  common  safety,  when  allowable  as  general  average, 
112. 

Capture,  loss  by,  result  of  mast  cut  away,  not  general  average,  40. 

Cargo, 

jettison  of.     See  Jettison. 

damage  to.     See  Damage. 

used  for  fuel,  95. 

damaged  in  forced  discharge,  99. 

given  as  salvage,  102. 

sold  or  pledged  to  raise  funds,  103,  321. 

cost  of  discharging  at  port  of  refuge,  259. 

sold  and  replaced  by  other  cargo,  to  save  expenses,  267. 

for  two  ports  of  destination,  what  is  proper  place  of  adjustment, 

313. 
bottomry  loan  on,  327. 
cost  of  placing  in  safety  when  stranded  or  sunk.     See  Complex 

Salvage  Operations. 
amount  made  good  for  sacrifices  of,  335.     See  Adjustment. 
amount  made  good  when  jettisoned  goods  are  recovered,  339. 
contributory  value  of,  353. 
lien  on,  for  contribution,  384.     See  Lien. 
transhipment  of.     See  Transhipment. 

Catalonia,  Ordinance  of,  a.d.    1340  ...  9. 


830  INDEX. 

Cattlemen,  maintenance  of,  at  port  of  refuge,  283. 

Causa  Proxima.     See  Cause  of  Loss. 

Cause  of  Loss, 

in  contracts  of  insurance,  only  proximate  cause  of  loss  con- 
sidered, 32. 
how  far  otiierwise  in  contract  of  affreightment,  32. 

Chains, 

slipped  because  twisted,  how  treated,  133. 

slipped  ends  of  parted  chains,  how  treated,  133. 

parted  by  suddenly  letting  go  anchor,  136. 

subject  to  deduction  of  one-sixth,  instead  of  one-third,  342,  347. 

Charges,  particular,  shipowners'  lien  for,  384. 

Chartered  Freight, 

excess  of,  over  bill  of  lading  freight,  not  contributed  for,  341. 
contributes,  when  ship  chartered  to  fetch  cargo  for  charterer, 

■whether  cargo  on  board  or  not,  357,  364. 
whether  ulterior  chartered    freight   ought    to  contribute  when 

ship  carries  cargo  for  third  party,  364. 
does  not  contribute  after  goods  shipped  under  bill  of  lading,  366. 

Charterer, 

who  sublets,  his  claim  for  loss  of  freight,  109,  341. 

contributes  for  excess  of  bill  of  lading  freight  over  char- 
tered freight,  366. 
temporarily  owner  of  ship,  ought  chartered  hire  to  contribute? 
367. 

Charter-Party.     See  Contributing  Interests  and  Values. 
Chili,  law  of,  484. 

Coal,  used  in  floating  vessel  in  position  of  peril,  general  average, 
142. 

Collision,  from  fault  of  one's  own  ship,  gives  no  claim  for  general 
average,  36. 

Commission  for  arranging  sale  of  cargo,  213. 

Complex  Salvage  Operations, 
rules  for  treating,   183. 

what  constitutes  one  entire  operation,  183,  206. 
cases  on  this  point: 

Kemp  V.  Ralliday,  187. 

Job  V.  Langton,  188. 

Moran  v.   Jones,   190. 

Walthetv  v.  Mavrojani,  194. 

Royal  Mail  Co.  v.  English  Bank  of  Rio,  198. 
conclusion,  200. 


INDEX.  831 

Complex  Salvage  Operations — continued. 
typical  modern  example  of,  205. 
expense  of  moving-  cargo  from  place  of  wreck  to  market  or  port 

of  shipment,  209. 
expense  of  loading-  cargo  after  -wreck,  212. 
remuneration  of  experienced  person  employed  by  shipowner  to 

act  for  all  parties,  213. 

Condemnation, 

of  ship,  when  justifiable  because  of  costliness  of  repairing,  272. 
how  this  state  of  things  affects  the  contract  of  affreightment,  273. 
by  English  law,  generally  no  freight  pro  rata,  276. 
for  foreign  ships,  may  depend  on  law  of  flag,  277. 

Consequences, 

of  sacrifice,  how  far  to  be  treated  as  general  average,  39. 
occasionally  necessary  to  group  together  several  operations  as 
one,  41. 

Consignee, 

not  owner,  not  liable  as  such  for  general  average,  385. 
but  lien  for  contribution  can  be  exercised  against  him,  384. 
therefore  usually  obliged  to  sign  average  bond  or  make  a  de- 
posit, 385.     See  Lien. 

Consolado  del  Mare,  account  of,  420. 

Contributing  Interests  and  Values, 

property  sacrificed  contributes  as  well  as  property  saved,  336, 

353.  " 
general  principle,  gain  as  compared  with  total  loss,  350. 
ship,  how  to  determine  actual  value  of,  351. 

what  deductions  to  bo  made,  352. 
cargo,  rules  for  fixing  its  value,  353. 

how,  if  average  adjusted  at  port  of  loading,  353. 
freight,  rules  for,  354. 
advance-freight,  must  bo  treated  as  enhanced  value  of  cargo, 

354. 
cargo  belonging  to  shipowner,  to  be  treated  as  including  freight, 

355. 

chartered  freight,  difficulties  as  to,  356. 

when  does  interest  in  freight  commence,  362. 

of  speculative  charters,  366. 

of  charters  which  make  the  charterer  the  temporary  owner  of 
the  ship,  367. 

effect  of  advances  under  a  charter-party,  369. 

what  advances  in  charter  arc  absolute,  or  not  liable  to  bo  re- 
funded, 370. 

deductions  from  freight,  what  wages  and  port-charges  should 

be  deducted,  372.    . 


832  INDEX. 

CoN'TurBUTixG  INTERESTS  AND  Values — Continued. 
other  kinds  of  contributing-  interests,  375. 

whether  only  goods  shipped  as  merchandise  liable  to  con- 
tribute, 376. 

lives  of  crew  and  passengers,  not  liable,  375. 
nor  crew's  wages,  375. 

government  stores  are  liable,  375. 

unconsumed  provisions,  if  worth  computing,  are  liable,  375. 

whether  passenger's  effects  contribute,  375,  377. 

when  jewels  and  other  small  articles  of  great  value  contri- 
bute, 380. 

whether  bank  notes  and  securities  contribute,  381. 

articles  carried  under  mail  contracts  do  not  contribute,  382. 

passage  money  generally  does  not  contribute,  382. 

contributory  values  for  salvage,  175,  181. 

Cost  of  Raising  Funds.     See  Funds. 

County  Court,  jurisdiction  in  cases  of  general  average,  409. 

Crew,  wages  of.    See  Wages. 

Custom  of  Trade,  as  to  carrying  deckloads,  how  to  be  understood,  69. 

Customs  of  Lloyd's, 

origin  of  the  term,  17,  18. 

effect  of  clause  in  bill  of  lading  to  adjust  according  to,  84. 
as  to  general  average  considered  to  be  only  rules  of  practice, 
225,  229. 


Damage 

to  cargo,  incidental  to  jettison,  81. 

in  quenching  fire,  81,  82. 

by  discharging  it,  in  what  cases  general  average,  99. 

from  voluntary  stranding,  102.    See  Voluntary  Strand- 
ing. 

from  cutting  away  a  mast,  102. 
to  ship  by  discharging  cargo  under  extraordinary  circumstances, 

how  treated,  136. 
in  docking  in  a  gale,  136. 

in  getting  her  off  a  shore,  or  clear  of  a  collision,  138. 
by  strain  of  heaving  her  afloat,  138. 
done  by  steamer  in  coming  alongside  to  render  salvage 

service,  how  treated,  141. 
by  using  engines  to  force  ship  off  shore,  141. 
by  fighting,  not  general  average,  116. 

Damme  (Flanders),  judgments  of,  9. 


II 


INDEX.  833 

Danger 

must  not  be  from  fault  of  claimant,  31. 

nor  from  unseaworthiness,  33. 

nor  from  accident  resulting  from  fault  of  master  or  crew,  36. 
unless  negligence  or  unseaworthiness  excepted  in  contract,  37. 
a  necessary  condition  of  general  average,  43. 
how  far  the  quantum  of  danger  has  been  defined,  43. 

Deadlock  Theory  rejected  by  Lord  Bowen,  241. 

Death,  sacrifice  in  fear  of,  whether  general  average,  25. 

Deck, 

cutting  holes  in,  to  jettison  cargo,  81. 

jettison  of  ship's  stores  from,  when  not  general  average,  112. 

cargo  carried  on.     See  DecMoad. 

Deck-houses,  whether  proper  to  carry  cargo  in  tlicm,  77. 

Deckload, 

jettison  of,  not  the  subject  of  general  average,  except  where 
there  is  a  custom  of  trade  so  to  carry,  59,  71. 
or  except  when  all  the  parties  have  agreed  to  the  carriage 
of  the  deckload,  72,  76. 
how,  if  not  possible  to  carry  except  on  deck,  72. 
rule  of  Average  Adjusters'  Association  as  to,  76. 
jettison  of,  on  inland  voyage,  76. 

Deductions.     See  Thirds. 

Definition  of  General  Average,  . 
first,  by  Lord  Stowell,  18. 
by  Lawrence,  J.,  21. 
by  later  judges,  22. 
in  Marine  Insurance  Act,  25. 

Delay, 

no  allowance  in  general  average  for,  21,  182,  281. 

wages  and  keep  of  crew  during  delay  at  port  of  refuge,  228,  279. 

Denmark,  law  of,  495. 

Deposit, 

practice  to  take,  from  consignee  of  cargo,  385. 

to  give  shipowner  control  over,  unreasonable,  399,  401, 
402. 
substitution  of  underwriter's  guarantee  for,  402. 

Derelict,  of  the  forfeiture  of  freight  which  follows  it,  and  its  effect 
upon  adjustment,  213. 

Deviation,  legal  effect  of,  217. 

Disbursements.    Is  it  necessary  that  they  should  be  extraordinary, 
not  merely  in  degree  but  in  kind?  46.    See  Expenditure. 

3h 


834  INDEX. 

Discharging  Expenses  at  Port  of  Eefuge, 
practice  iu  other  countries,  218. 
former  practice  here,  219. 

to  repair  general  average  damage,  221,  228,  250. 
to  repair  particular  average  damage,  235,  236,  237,  240,  241, 

243,  250,  251,  252,  259. 
for  safety  of  cargo  alone,  235,  258,  260. 

Docking  in  gale,  damage  to  ship  by,  how  treated,  136. 

Effects  of  Passengers  and  Seamen, 

are  they  contributed  for  when  sacrificed?  104. 
do  they  contribute?  375,  377. 

Enemy,  damage  by  resisting,  not  general  average,  116. 

Engines  used  in  order  to  force  the  steamer  off  shore,  141. 

England  alone  in  Europe  in  having  no  code  of  sea  law,  17. 

Entire  Operation,  what  constitutes,  183  et  seq.    See  Complex  Sal- 
vage Operations. 

Expenditure, 

to  constitute  general  average,  must  be  extraordinary,  172. 

meaning  of  this  term,  173. 

salvage,  174. 

life  salvage,  182. 

cost  of  complex  salvage  operations,  183. 

port  of  refuge  expenses,  216.    See  Port  of  Refuge. 

practice  to  adjust  on  state  of  facts  at  termination  of  adventure, 

301. 
arguments  in  favour  of  this  practice,  302. 
arguments  in  favour  of  adjustment  on  state  of  facts  at  time  of 

exj)enditure,  305. 

Fault,  when  a  bar  to  general  average  resulting  from,  34,  37,  80.    See 
Negligence. 

Fenders,  damage  to,  in  preventing  collision,  135. 

Fighting,  damage  by,  not  in  this  country  treated  as  general  average, 
116. 

Fire, 

damage  to  cargo  in  quenching,  is  general  average,  82. 

rule  of  practice  as  to  packages  actually  on  fire,  86,  94. 

criticism  of  this  rule,  94. 

damage  by  scuttling,  or  voluntary  stranding,  to  put  out,  is  also 

general  average,  87,  93. 
due  to  spontaneous  combus{;ion,  81. 
damage  to  cargo  by,  at  port  of  refuge,  102. 


INDEX.  835 

Flanders,  law  of,  9. 

Fodder,  for  cattle  at  port  of  refuge,  not  general  average,  283. 
Forecastle,  cargo  jettisoned  from,  how  ti-eated,  77. 
Foreign  Ships,  bottomry  on,  determined  by  law  of  flag,  329. 
France,  law  of,  496. 

Freight, 

loss  of,  ordinarily  follows  sacrifice  of  cargo,  and  is  treated  in 
the  same  way,  106,  337. 
exceptional  cases,  107,  108. 
loss  of,  when  cargo  destroyed  by  water  used  to  extinguish  lire 

arising  from  spontaneous  combustion,  80,  88,  108. 
charterer's  loss  of,  Avliere  he  sublets,  109,  341. 
loss  of,  Avhich  may  follow  when  ship  derelict,  213. 
reloading,  and  outward  port  charges  at  port  of  refuge  entered 

on  account  of  accident,  chargeable  to,  219,  221,  237,   242, 

243,  245,  248,  250,  254. 
advance  of,  how  in  practice  it  affects  treatment  of  reloading 

expenses,  261. 
advance  of,  how  it  affects  contribution  for  loss  of  goods,  340. 
pro  rata  itineris  peracti,  when  due,  276. 
right  of  shipoAvner,  Avhen  ship  a  Avrcck,  to  tranship  cargo  and 

earn,  273. 
paid  to  vessel  into  which  cargo  transhipped  Avhon  ship  a  Avrock, 

275. 
on  cargo  sold  to  defray  expenses  at  port  of  refuge,  323. 
amount  made  good  for  'loss  of,  Avhcn  cargo  jettisoned,  339,  340. 

341. 
contributing  value  of.     See  Contributing  Interests  and  Values, 

Advance  Freight,  Bill  of  Lading  Freight,  Chartered  Freight. 

Fuel,  the  burning  of  cargo  or  ship's  materials  to  serve  as,  for  a 
steamer's  engines,  or  donkey  engines,  to  avert  a  danger,  law 
as  to,  95,  117. 

Funds, 

cost  of  raising,  hoAv  treated,  319. 

original  method,  Avhen  owners  of  cargo  Avoro  on  board,  319. 

sale  of  cargo  to  raise  funds,  how  treated,  321,  320. 

when  sold  at  a  profit,  321. 

and  the  ship  is  afterAA'ards  lost  on  the  voyage,  322. 
how,  as  to  the  right  to  freight  in  such  case,  323. 
bottomry  loans  on  cargo,  327. 
by  English  laAV,  master  must  first  inform  shipowner  and  cargo- 

OAvner,  328. 
but  foreign  ships  are  not  ahvays  subject  to  this  rule,  329. 

3  11  2 


836  INDEX. 

General  Average, 
origin  of,  1. 

underlying  idea  of  bargain  made  on  spot,  9. 
theories  as  to  origin  of  word  "average,"  11. 
utility  of  principle  of,  14,  44. 
definitions  of,  21. 

whether  founded  on  natural  right  or  contract,  26. 
doctrine  of,  only  applicable  to  maritime  adventures,  52. 
must  sacrifice,  to  be  treated  as,  be  act  of  master?  48. 

General  Contribution,  former  practice  of,  63. 

Genoa,   Statute  of,  a.d.    1341,  using  the  word   "average,"   9,   12. 

Germany,  law  of,  519. 

Goods.     See  Cargo. 

sacrifice  of,  not  included  in  cargo,  103. 

for  which  no  bill  of  lading,  103. 
passengers'  and  seamen's  effects,   104. 

GovERN:\rENT  Stores, 

their  liability  to  contribute,  375. 

only  enforceable  by  exercise  of  lien,  375. 

Greece,  law  of,  560. 

Guarantee, 

practice  to  take  underwriter's,  for  payment  of  contribution,  402. 
form  of  Lloyd's,  823. 

Guidon  de  la  Mer,  account  of,  15. 

Hamburg,  Ordinance  of  1731  .  .  17 

Hanseatic  League,  regulations  of,  8. 

Harter  Act,  effect  of,  on  general  average,  38. 

Hawsers, 

cut  for  common  safety,  when  not  allowable  as  general  average, 

113. 
iised  for  jury-rig,  134. 
parted  while  being  used  for  chains,  136. 

Heating  of  Cargo, 

jettison  of  heated  cargo  is  general  average,  78. 

unless  it  was  wrongfully  or  negligently  shipped,  81. 

Holland,  law  of,  566. 

Hulk, 

used  as  warehouse,  whether  principle  of  general  average  applies, 

52. 

hire  of,  at  port  of  refuge,  how  treated,  266. 


INDEX.  837 

Inland  Voyage,  jettison  of  deck  cargo,  7G. 

Interest, 

loss  of,  during  delay  at  port  of  refuge,  282. 
on  value  of  cargo  sacrificed,  335. 

Italian  origin  of  much  mercantile  law  in  England,  13. 

Italy,  law  of,  397. 

Japan,  law  of,  615. 

Jettison, 

the  first  example  of  general  average,  1,  8. 
for  common  safety,  to  be  replaced  by  common  contribution: 

Mouse's  Case,  55. 
Gratitudine  (Lord  Stowell),  56. 
though     made     by    captors    (Price    v. 
JS'oble),  57. 
but  not  if  grossly  or  ignorantly  made,  58. 
nor  if  made  merely  to  prevent  specie  falling 
into  enemy's  hands,  58. 
of  deck-load,  rules  as  to,  59,  76. 
of  cargo  in  deckhouses,  77. 
resulting  from  fault  of  cargo  (e.g.,  heated  hemp),  how  treated, 

77. 
damage  incidental  to,  is  general  average,  81. 

e.g.,  damage  by  water  let  in  through  opening  of  hatches, 
82. 
of  ship's  stores,  is  general  average,  112. 
exception,  stores  improperly  carried  on  deck,  112. 
amount  made  good  for,  335.     See   Adjustment. 

Jewels,  when  thev  contribute,  380. 

Jury-rig,  general  rules  as  to,  134. 

KoNiGSBERG,  Ordinance  of  1730  .  .  17. 

Lien, 

of  shipowner  on  cargo  for  claims  of  general  average,  384. 
also  for  claims  on  cargo  for  particular  charges,  384. 
safeguards  against  abuse  of  this  power,  385. 
mere  consignee,  as  such,  not  liable  for  general  average,  385. 
shipowner  must,  at  common  law,  e.xert  lion  at  his  own  expense, 

386. 
statutory  extension  of  this  right,  387,  815. 
Liverpool  Local  Act  (Mersey  Docks  Consolidation  Act),  388,  818. 
duty  of  shipowner  to  exert  tliis  power  for  the  benefit  of  the 

cargo-owners,  391. 


838  INDEX. 

Lien — co  ntinued . 

average  bonds  or  agreements,  practice  to  make  consignees  sign, 

385. 
difference  in  practice  between  London  and  Liverpool,  395. 
bond  unreasonable  which,  makes  average  adjuster  an  arbitrator, 
399,  401. 
or  gives  shipowner  control  of  deposit,  399,  401,  402. 
practice  of  accepting-  underwriter's  guarantee  for  payment  of 

contribution  considered,  402. 
Admiralty  jurisdiction  in  cases  of  general  average,  404. 
County  Court  jurisdiction,  409. 

Life,  sacrifice  for  preservation  of,  Avhether  general  average,  25. 

Life  Salvage,  recoverable  by  statute,  183. 

Lighters, 

cost  of,  when  cargo  put  out  to  refloat  ship,  262. 
hire  of,  at  j)ort  of  refuge,  how  treated,  266. 

Liverpool  Local  Act  for  extension  of  right  of  lien,  388,  818. 

Lloyd's,  customs  of.    See  Customs  of  Lloyd's. 

Lombard  Street,  tradition  referring  to,  17. 

Loss  OF  Cargo.    See  Cargo,  Jettison. 

Louis  XIV.,  Ordonnance  of,  16. 

Machinery, 

exposure  of,  to  extraordinary  risk  not  always  general  average, 

111. 
damage  to,  in  forcing  ship  off  ground,  141. 

Mails,  liability  to  contribute,  382. 

Marine  Insurance  Act,  definition  of  general  average  in,  25. 

Market, 

loss  of  a  special,  consequent  on  putting  into  port  of  refuge, 
288. 

market  price  of  cargo,  when  and  where  to  be  taken.  See  Ad- 
justment. 

Mast, 

cutting  away  of,  universally  allowed  as  general  average,  110.; 
when  in  a  state  of  wreck,  118.    See  Wreck. 
damage  to  cargo  by,  102. 
sacrificed  to  prevent  collision  with  vessel  at  anchor,  131. 
loss  of  topmast  by  cutting  away  cracked  lower  mast,  130. 
mizenmast  cut  away  to  clear  wreck  of  mainmast,  130. 


INDEX.  839 

Master  of  Ship, 

must  sacrifice  be  act  of?  48. 

his  authority  to  make  contract  for  salvage,  175. 

to  pledge  ship,  freight,  or  cargo,  or  sell  cargo, 
to  raise  funds,  ?20. 

Merchant's  Risk,  goods  carried  at,  are  to  be  contributed  for  when 
sacrificed,  67. 

Metal  rubbed  off  by  spars  cut  away,  when  ship  must  in  any  case  be 
re -metalled,  132. 

Mexico,  law  of,  621. 

Mixed  Cases,  of  putting  into  port  to  repair  damage  partly  the  result 
of  sacrifice,  and  partly  of  accident,  255. 

Mizenmast  cut  away  to  clear  wa-eck  of  mainmast  already  carried 
away,  how  treated,  130. 


Negligence 

of  shipowner,  its  effect  on  contract  of  affreiglitment,  32. 

does  not  disentitle  cargo-owner  to  contribution, 
37. 
of  claimant  disentitles  him  to  contribution,  34,  36. 

unless  his  contract  exempts  him  from  liability,  37. 

New  Materials,  not  subject  to  deduction  of  one-third,  343,  347. 

Norway,  law  of,  636.        . 


Oleron,  Rolls  of, 
their  origin,  4. 

written  into  Black  Book  of  our  Admiralty,  5. 
stat.  of  Henry  IV.  concerning  them,  5. 
clause  concerning  jettison,  6. 

cutting  away  mast,  7. 

contributing  values,  7. 

One  Operation,  what  constitutes,  183  et  seq.    See  Complex  Salvage 
Operations. 

One-third,  new  for  old,  rules  as  to,  342. 

Ordinance 

of  Rotterdam  (a.d.  1721),  its  definition  of  general  average,  16. 
of  Stockholm  (a.d.  1750),  its  definition  of  general  average,  17. 
of  Konigsberg  (a.d.  1730),  its  definition  of  general  average,  17. 
of  Hamburg  (a.d.  1731\  its  definition  of  general  average,  17. 
of  Bilbao,  its  definition  of  general  average,  17. 


840  INDEX. 

Okdonnaxce  of  Louis  XIV.  (a.d.  1681), 
its  definition  of  general  average,  16. 
rule  as  to  deck-load  jettison,  60. 

Owner  of  ship.     See  Shipowner. 


Particular  Charges,  shipowner's  lien  for,  384. 

Partidas,  The  (a.d.  1266),  account  of,  11. 

Passage  Money,  liability  to  contribute,  382. 

Passengers'  Effects, 

are  they  contributed  for  when  sacrificed?  104. 
do  they  contribute?  375,  377. 

Perils  of  the  Seas, 

exception  of,  does  not  protect  shipowner,  when  negligent,  32. 
unless  negligence  clause  in  contract,  33. 

Peru,  law  of,  637. 

Pilfering,  loss  of  cargo  by,  102. 
Pirates,  cargo  given  to,  as  ransom,  103. 

Pisa, 

ancient  Code  of  (a.d.  1160),  11. 
later  Code  of  (a.d.  1298),  12. 

Place  of  Adjustment, 

when  voyage  completed,  290. 

adjustment  need  not  be  prepared  at  destination,  292. 

when  voyage  broken  up,  293. 

what  justifies  breaking  up  a  voyage,  272,  294. 

treatment  of  various  cases  of  transhipment,  298. 

in  the  case  of  ship  with  cargo  for  two  or  more  ports,  313. 

Poop,  cargo  jettisoned  from,  how  treated,  77. 

Port    Charges,  incurred    subsequent  to  general  average  act,  de- 
ducted from  contributory  value  of  freight,  374. 

Port  of  Eefuge, 

temporary  repairs  at,  how  treated,  137. 

when  it  is  duty  of  master  to  put  into,  217. 

costs  of  putting  into,  how  treated  in  countries  other  than  Great 

Britain,  218. 
former  practice  in  this  country,  219. 

case  of  Atwood  v.   Sellar  (putting  in  on  account  of  general 
average  damage),  in  Queen's  Bench  Division,  220. 
in  Court  of  Appeal,  225. 


I 


INDEX.  841 

Port  of  Eefuge — continued. 

Svendsen  v.   Wallace  (putting    in    on    account    of    particular 
average  damage),  trial  before  Lopes,  J.,'  as  t-o  proof  of 
custom,  230. 
appeal  on  this  point,  232. 
as  to  the  question  of  principle  before  Lopes,  J.,  233. 

in  Court  of  Appeal,  Brett,  M.R.,  234. 

Bowen,  L.J.,  238. 
Baggallay,     L.J.. 
243. 
in  House  of  Lords,  244. 
conclusion  from  these  judgments,  as  formulated  by  the  Average 

Adjusters'  Association,  249. 
criticism  of  the  theoretical  difficulty,  251. 
theory  of  Brett,  M.E.,  that  general  average  act  is  putting  into 

port  to  repair,  236,  252,  259. 
treatment  of  mixed  cases,  i.e.,  cases  where  the  damage,  to  repair 
which  the  ship  goes  into  port,  is  partly  the  result  of  sacrifice, 
and  partly  of  accident,  255. 
what  is  to  be  treated  as  place  of  safety,  257. 
cost  of  towing  ship  to  port  of  refuge,  258. 
cost  of  pumping  ship  at  port  of  refuge,  258. 
discharging  cargo  at,  on  account  of  damage  to  cargo,  258. 

to  repair  ship,  259. 
reloading  cargo,  how  treated  Avhon  freight  lias  been  paid  in 

advance,  261. 
cases  in  Avhich  the  cost  of  reloading  is  in  practice  treated  as 

general  average,  262. ' 
substituted  expenses  at,  262.     See  Substituted  Expenses. 
position  when  ship  condemned  at,  272 . 
what  justifies  condemnation  at,  272. 
rights  and  dutj  of  British  shipoAvner  after  condemnation,  with 

regard  to  cargo,  273. 
rights  and  duty  of  foreign  master  may  depend  on  law  of  flag, 

277. 
wages  and  keep  of  crew  during  stay  at,  279. 
fodder  supplied  to  cattle  at,  283. 
losses,  other  than  expenditure,  consequent  on  i)utting  into,  288. 

Portugal,  law  of,  638. 

Postal  Packets,  whctlicr  liable  to  eonlnbutc,  382. 

Practice,  rules  of.     See  Average  Adjusters'  Association,   United 
States. 

Press  of  Canvas, 

damage  by,  not  general  average,  114. 
unless  where  .«hip  on  shore,  115. 


842  INDEX. 

Provisions 

consumed  by  crew  iii  port  of  refuge,  dictum  iu  Atwood  v.  Sellar, 
228. 
not  allowed  in  practice,  279. 

when  crew  kept  to  work  after  wreck  of  ship,  283. 
cost  of,  generally  not  deducted    from    contributing  value    of 
freight,  374. 

Pumping  Ship, 

at  port  of  refuge,  cost  of,  258. 

extra  hands  for,  hired  by  way  of  substitution,  269. 

Pumps,  damage  to,  in  pumping  leaky  ship,  135. 


Ransom,  cargo  given  up  as,  103. 

Refuge,  port  of.     See  Fort  of  Eefuge. 

Reloading  Expenses  at  Port  of  Refuge, 
foreign  practice,  218. 
former  English  practice,  219. 
when  cargo  landed  for  general  average  repairs,  220,  227,  228, 

237,  250. 
when  cargo  landed  for  particular  average  repairs,  220,  230,  237, 

242,  243,  246, 249,  250, 253, 254. 
treatment  of,  when  freight  paid  in  advance,  261. 
when  cargo  put  into  lighters,  to  refloat  ship,  262. 

Repair, 

temporary,  at  port  of  refuge,  how  treated,  137,  264,  268. 
when  shipowner  bound  to  effect,  and  carry  cargo  to  destination, 
272. 

Rhodian  Law,  maxim  of ,  1 . 

incorporated  in  the  Digest,  1. 

retained  in  the  practice  of  early  seamen,  4. 

effect  of,  on  definitions  in  English  Courts,  24. 

Rigging,  cut  away  to  clear  ships  in  collision,  131. 

River  Voyage,  jettison  of  deck-cargo,  76. 

Rockets  or  blue  lights  burnt  as  signals  of  distress,   not  general 
average,  135. 

Roman  Law,  extract  from,  411. 

Ropes  cut  up  to  secure  sprung  mast,  &c.,  general  average,  135. 

Rotterdam.  Ordinance  of  1721...  16. 


J 


INDEX.  84-3 

Rules  of  Practice, 

of  British  Average  Adjusters'  Association,  803. 

of  Association  of  Average  Adjusters  of  United  States,  824. 

Russia,  law  of,  653. 

Sacrifice, 

a  necessary  condition  of  every  general  average,  23,  43. 

extraordinary  exj)enditure  may  be  a,  23. 

must  be  properly  made,  31. 

is  deemed  voluntary,  though  no  other  alternative  to  total  loss,  45. 

not  made  by  master,  whether  general  average,  48. 

of  that  which,  by  reason  of  a  previous  accident,  had  already 

become  of  no  value,  118  et  seq.     See  Wreck,  State  of. 
of  topmast,  by  cutting  away  cracked  lower  mast,  130. 
of  mizenmast  attached  by  ropes  to  mainmast  carried  away,  130. 
of  masts  cut  away  to  prevent  a  schooner  being  sunk  by  vessel 

at  anchor,  131. 
of  rigging  of  two  vessels  in  collision,  131. 
of  an  anchor  washed  off  the  bows,  but  held  by  the  chain,  131. 
of  metal  rubbed  away  by  spars  cut  away  when  ship  must  in  any 

case  be  re-metalled,  132. 
of  foul  anchors,  how  treated,  133. 
of  chains  twisted,  133. 

of  an  anchor  run  out  too  far  to  be  hove  in.  133. 
of  slipped  ends  of  parted  chains,  133. 
merged  in  subsequent  Josses,  132,  139. 
no  true  distinction  between  expenditure  and,  173. 

Sacrifices,  mode  of  adjusting  losses.    See  Adjustment. 

Safety,  what  is  to  be  considered  a  place  of,  257. 

Sail 

set  to  force  ship  off  ground,  or  prevent  her  running  aground, 

115. 
press  of,  damage  by,  not  general  average,  114. 

unless  where  ship  ashore,  115. 
cut  away  to  save  mast  or  spar,  143. 
jury -sail  blown  away,  135. 

Sale, 

of  cargo,  and  purchase  of  new,  to  save  expenses,  20(5. 

of  cargo  to  raise  funds,  103,  321.     See  Fund.^.  Cost  of  liaisincj. 

Salvage, 

loss  of  cargo  from  being  given  for,  liow  treated,  103. 
strictly  speaking,  not  general  average,  175. 
master's  authority  to  make  contracts  for,  175. 
owner's  authority  to  make  contracts  for,  175. 


844  INDEX. 

Salvage — continued. 

salvors'  right  to  act  as  volunteers,  177. 

requisites  of,  177. 

danger  need  not  be  imminent,  177. 

transhipment  of  cargo  treated  as,  178. 

distinction  between  ordinary  towage  and,  178. 

effect  of  change  of  weather  while  towing,  179. 

basis  of  payment  for,  180. 

contributory  values  for  salvage,  175,  181. 

unsuccessful  attempts  at,  how  treated,  181. 

services  of  a  like  nature  to,  182. 

of  life,  together  with  property,  182. 

recoverable  by  statute,  183. 
complex  salvage  operations,  rules  for  treating,  183. 
what  constitutes  one  entire  operation,  183,  206. 
cases  on  this  point,  187  et  seq. 
conclusion,  200. 

typical  modern  exarnple  of  complex  salvage  operation,  205. 
expenses  of  moving  from  place  of  wreck  to  market,  or  port  of 

shipment,  209. 
expenses  of  loading  the  cargo  after  wreck,  212. 
remuneration  of  skilled  person  employed  by  shipowner  to  act 
for  all  parties,  213. 

Salving  Steamer,  damage  to  ship  by,  how  treated,  141. 

ScAKDnsTAviAN  CoDE,  text  of,  690. 

Scuttling  vessel  to  extinguish  fire,  93. 

Seaworthiness, 

warranty  of,  32. 

stipulations  excluding  the  warranty,  34. 
See  Unseaworthiness. 

Sheathing,  Metal.     See  also  Metal. 
deduction  for  new,  342. 

none  in  case  of  loss  of  new,  345. 

Ship, 

general  principles  as  to  sacrifices  of,  110. 
amount  made  good  for  damage  to,  341. 

when  ship  not  repaired,  347. 
when  the  shipowner  is  bound  to  repair  her,  272. 
contributory  value  of,  351. 

Shipov^ner, 

■whether  he  has  authority  to  bind  cargo  by  salvage  contract,  175. 
may  employ  experienced  person,  in  case  of  disaster,  to  act  for 
general  benefit,  213. 


INDEX.  845 

Shipowner — continued. 

bound  to  exert  lien  for  protection  of  cargo-owners'  claims  for 
general  average,  391. 

when  bound  to  repair  and  prosecute  voyage,  272. 

right  of,  if  ship  becomes  a  wreck,  to  tranship  cargo,  273. 

whether  ever  bound  to  tranship  on  his  own  account  or  cargo- 
owners',  275. 

not  bound  to  employ  average  adjuster,  292. 

Sickness  of  crew  may  give  rise  to  claim  for  salvage,  177. 

Signals  or  Distress  burnt  for  their  proper  purpose  not  general 
average,  135. 

Spain,  law  of,  660. 

Spare  Spars, 

cut  away  for  jury  rig,  how  treated,  135. 

used  as  fuel,  when  allowed  in  general  average,  117. 

Specie,  liability  to  contribute,  198,  380. 

Spontaneous  Combustion, 

damage  to  cargo  in  quenching  fire  due  to,  is  general  average,  81. 
unless  cargo  was  wrongfully  or  negligently  shipped  by  its 
owner,  81. 

State  of  Wreck.     See  Wreck,  State  of. 

Statute, 

of  William  I.,  concerning  jettison,  17. 

of  Elizabeth,  concerning  marine  insurance,  17. 

Statutory  extension  of  right  of  lien,  387. 

Stockholm,  Ordinance  of  1750  .  .  17. 

Stores,  jettison  of  ship's,  112. 

Storm  Oil,  expenditure  of,  not  general  average,  135. 

Stranded  Ship,  damage  by  strain  of  heaving  off,  138. 

Str.\nding,  voluntary.    See  Volunlanj  Stranding. 

Subsequent  Accident.     See  Adjustment. 

Substituted  Expenses, 

of  substitutions  for  repair  to  ship,  137. 
rules  for  treatment  of,  262. 
decisions  which  regulate  this: 

Lee  V.  Southern  Insurance  Co.,  263. 

Wilson  V.  Bank  of  Victoria,  264. 
liire  of  hulks  or  lighters,  266. 


846  INDEX. 

Substituted  Expenses — continued. 

loss  on  cargo  sold,  and  replaced  by  other  cargo,  to  save  expense 

on  it,  267. 
transhipping   entire    cargo    to    savB    expense    of    landing   and 

storing,  267. 
transhipping  part  of  cargo  for  the  like  purpose,  268. 
temporary  repair,  137,  264,  268. 
extra  hands  for  pumping,  269. 
towage  from  port  of  refuge  to  destination,  269. 
rules  of  the  Average  Adjusters'  Association  on  these  subjects, 

271. 

Success,  whether  a  necessary  condition  of  general  average,  42. 
Sweden,  law  of,  690. 

Temporary  Repair  at  port  of  refuge,  how  treated,  137,  264,  268. 

Thirds, 

general  practice  to  deduct,  342. 

but  not  for  new  materials,  343. 
nor  on  first  voyage,  344. 
rules  of  Average  Adjusters'  Association  as  to,  346. 

Time,  no  allowance  in  general  average  for  loss  of,  281. 

Tipping  Ship  to  effect  Repairs,  damage  to  cargo  by,  102. 

Topmast  sacrificed  by  cutting  away  cracked  lower  mast,  how  treated: 
130. 

Tov^^age, 

ordinary,  what   circumstances   may   convert  it  into   an  act  of 

salvage,  178. 
from  port  of  refuge  to  destination,  how  treated,  269. 

Towing  Ropes, 

loss  of,  when  applied  to  ordinary  \ises,  not  general  average,  113. 
used  to  secure  jury  rudder,  135. 

Transhipment  of  Cargo, 

when  to  be  treated  as  salvage,  178. 
how  treated  when  incurred  to  save  expenses,  267,  268. 
right  of  shipowner,  when  ship  a  wreck,  to  transhij),  273. 
whether  ever  bound  to  tranship,  on  his  own  account  or  cargo- 
owners',  275. 
rule  for  foreign  ships,  277. 
how  transhipment  afi'ects  place  of  adjustment,  298. 

Ultimate  Results:  question  whether  these,  or  values  at  the  time, 
should  be  basis  of  adjustment,  300. 


INDEX.  847 

Underwriters'  Guarantee,  practice  to  take,  as  security  for  cou- 
tributiou,  402. 

United  States, 
law  of,  718. 
rvdes  of  practice  of  Average  Adjusters'  Association,  824. 

Unloading  Cargo.    See  Discharging  Expenses. 

Unseaworthiness, 

effect  of,  on  contract  of  carriage,  32,  34. 

shipowner  not  entitled  to  contribution  for  sacrifice  due  to,  35. 
unless  exempted  by  contract  from  liability,  37. 

Unsuccessful  attempts  to  salve,  how  treated,  181. 

Uruguay,  law  of,  779. 

Utility  of  the  rule  of  general  average,  14,  44. 

.Values.     See  Amount  to  be  made  good,  Contributory  Values. 

Venezuela,  law  of,  783. 

Voluntary  Stranding, 

damage  to  cargo  by,  102. 

general  principles  as  to,  143. 

Custom  of  Lloyd's  as  to,  144. 

Arnould's  doctrine  as  to,  148. 

American  decisions  as  to,  149. 

York-Antwerp  Rule,  161. 

discussions  in  Average  Adjusters'  Association,  161. 

conclusion,  162. 

cost  of  refloating  after,  208. 

note:  older  authorities,  169. 

Volunteers,  right  of  salvors  to  act  as,  177. 

Voyage, 

breaking  up  of,  as  affecting  place  of  adjusting  general  average, 

293. 
what  justifies,  294. 
as  affecting  contract  of  affreightment,  298. 

Wages  of  Crew, 

during  delay  in  port  of  refuge,  dictum  in  Aiwood  v.  ScUar,  228. 

in  English  practice,  not  general  average,  279. 

aliter  if  kept  to  work  after  wreck,  283. 

rule  of  Merchant  Shipping  Act  as  to  this,  284. 

deduction  of,  from  contributory  value  of  freight,  374. 


848  INDEX. 

Warehousing  Expenses  at  Port  of  Refuge, 
foreign  practice,  218. 
•  former  English  practice,  219. 
when  cargo  discharged  for  general  average  repairs,  220,  222, 

228,  237,  248,  250. 
particular  average  repairs,  220,  236. 
237,  241,  243,  244,  250,  253. 
when  cargo  stored  in  hulks  or  lighters  to  save  landing,  266.. 

or  because  no  warehouse  available,  267.  ^ 

Westcapelle,  laws  of,  9. 

WiSBUY,  law  of,  its  origin,  8. 

Wreck, 

state  of,  what  is  treated  as,  118. 

sacrifice  of  things  in  state  of,  not  allowed  here  as  general  average, 

95,  118. 
dictum  in  Johiison  v.  Ghapman,  as  to  what  is,  119. 
decisions  on  this  cj^uestion,  120. 
formula  and  applications,  128. 
rigging  of  ship,  entangled  with  other  vessel,  not  considered  in 

state  of,  131. 
anchor  washed  off  bow  not  in  state  of,  131. 

nor  boat  washed  adrift,  132. 
expenses  of  salving  property  from.    See  Salvage. 

York-Antwerp  Eules,  history  and  text  of,  788. 


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Seventh  Edition.    By  Marcus  W.  Slade.   1919.    It.  los. 

"  Indispensable  for  Admiralty  practitioners." — Laiv  Journal. 

COMPANY  LAW.— Palmer's  Company  Law.  A  Practical 
Handbook  for  Lawyers  and  Business  Men.  Tenth  Edi- 
tion. By  Alfred  F.  Topham.  1916.  Net,  15.9. 
Palmer's  Company  Precedents.— Eleventh  Edition. 
Part  L  General  Forms.  1912.  21.  10s. 
Part  IL    Winding-up   Forms  and  Practice.     1912. 

21. 
Part  in.   Debentures  and  Debenture  Stock.      1912. 

11.  10s. 
"Palmer's  works  on  Oomp«jQy  Law  ai"©  all  beyond  criticism." 
— Law  MaffaziTie. 


■'  ,'i1 


M 


COMPANY  LAW ~c(mtinued. 

Palmer's  Private  Companies. — Fortieth  Edition.    1018. 

Net,  Is. 

Palmer's  Shareholders',  Directors',  and  Voluntary 
Liquidators'  Legal  Companion.— Thirtieth  Edition. 
1919.  Net,2s.6d. 

CONSTITUTIONAL  LAW.-  Ridges'  Constitutional  Law 

of  England. — Second  Edition.     1915.  15s. 

CONTRACTS.— Addison's  Law  of  Contracts.— Eleventh 
Edition.     By  W.   E.  Gordon  and  J.  Eitchie.     1911. 

21.  2s. 

"Among  all  the  works  on  Contracts,  there  is  none  more  useful 
to  the  practitioner  than  Addi.son." — Laiv  Times. 

Leake's  Principles  of  the  Law  of  Contracts.— Sixth 

Edition.     By  A.  E.  Randall.     1911.  11.  Us. 

"A  full  and  reliable  guide  to  the  principles  of  the  English  Law 
of  Contract." — Law  Journal. 

Pollock's  Principles  of  Contract.— Eighth  Edition. 
1911.  II-  12«. 

"  Thei-e  is  no  book  on  tlic  English  Law  of  Contract  which  deals 
so  lucidly  and  yet  so  comprehcnsiTely  as  this." — Law  Journal. 

CONVEYANCING.  — Armitage's     Short    Conveyancing 

Forms.     1918.  Net,  12s.  6rf. 

Prideaux's  Forms  and  Precedents  in  Conveyancing. 

—Twenty-first  Edition.     By  B.  L.  Cherry  and  R.  Bed- 
DiNGTON.    '2  vols.     191  ;5.  Net,  41.  -is. 

"'Prideaux"    is    th<?     best   work    on     Conveyancing." — Law 
Journal. 

COVENANTS.-  Wurtzburg's  Law  relating  to  Covenants 
for  the  Settlement  of  a  Wife's  After-acquired  Pro- 
perty.—1912.  55. 

CRIMINAL    LAW.  — Archbold    on     Indictments. —  With 

Forms.     By  H.  D.  Roome.     191G.  10s.  6d. 

Archbold's  Pleading,  Evidence  and  Practice  in 
Criminal  Cases.— Twenty-fifth  Edition.  By  H.  D. 
RooME  and  R.  E.  Ross.     1918.  Net,  21.  2s. 

Denman's  Digest  of  Criminal  Law.— Second  Edition. 
1918.  Net,  11.  5s. 

Russell's  Treatise  on  Crimes  and  Misdemeanors.— 

Seventh  Edition.     By  W.  F.  Grains  and  L.  W.  Ker- 
shaw.    3  vols.     1909.  41.  10s. 
"Indispensable  in  every  Court  of  criminal  justice  here  and  in 
our  colonies." — The  Times. 


DEATH    DUTIES.— Webster-Brown's    Finance     Acts.— 

(Estate  and  other  Death  Duties.)    Third  Edition.    1915. 

12s.  6d. 
"  Contains  much  practical  advice  which  will  be  of  substantial 
assistance  to  practitioners." — The  Times. 

DIARY.— The   Lawyer's  Companion   and   Diary,   1920. 

(Nearly  ready.)      -Net,  4s.  6cZ.  to  12.s. 

DICTIONARY.— Wharton's   Law   Lexicon.— Twelfth  Edi- 
tion.     By   E.   A.   WuRTZBURG.      1916.  2Z.    10s. 
"The  most  useful  of  legal  works." — Law  Journal. 

The    Pocket    Law    Lexicon.— Foiu-th  Edition.      1905. 

Net,  6s.  6d. 
"  A  wonderful  little  legal  Dictionary." — Law  Students'  Journal. 

DIGEST.— Mews'  Digest  to  End  of  1920.  Net,Ul. 

Full  Particulars  on  application. 

DIVORCE. -Browne  and  Watts'  Law  and  Practice  in 

Divorce  and  Matrimonial  Causes.— Eighth  Edition. 

By  J.  H.  Watts.     1913.  Net,  11.  8s. 

"The  practitioner's  standard  work  on  divorce  practice." — Law 

Quarterly  Review. 

EASEMENTS.— Goddard's  Treatise  on  the  Law  of  Ease- 
ments.—Seventh  Edition.  ,  1910.  11.  10s. 

"  Nowhere  has  the  subject  been  treated  so  exhaustively." — Law  . 
Times. 

Innes'  Digest  of  the  Law  of  Easements.— Eighth  Edi- 
tion.   1911.  7s-  ^d. 
,                 "  The  student  will  find  in  it  everything  that  he  wants,  while  the 
practitioner  will  be  glad  to  have  so  safe  and  comprehensive  a 
guide." — Law  Journal. 

ELECTIONS.— Rogers'     Parliamentary     Elections     and 

Petitions.— Nineteenth  Edition.     1918.  Net,  11.  5s. 

EQUITY.— Seton's   Forms   of   Judgments   and   Orders. 

With  Pra>ctical  Notes.  Seventh  Edition.  .By  A.  R. 
Ingpen,  K.C,  F.  T.  Bloxam  and  H.  G.  Garrett. 
3  vols.     1912.  61. 

"A  most  valuable  and  indispensable  work." — Law  Journal. 

Smith's    Practical    Exposition  of    the  Principles  of 

Equity.— Fifth  Edition.     1914.  21s. 

"Useful  to  both  practitioner  and  student  alike." — Law  Stu- 
dents' Journal. 

EVIDENCE.— Holt's  Outline  of  the  Rules  of  Evidence.- 

1917.  Net,  Is. 

Tregarthen's  Law  of  Hearsay  Evidence.— 1915. 

Net,  5s. 
"  An  elaborate    and   detailed   account  of   a   very   imperfectly 
understood   topic." — Lata    Quarterly  Review. 

Watson's  Law  of  Evidence.— 1917.  Net,  12s.  6d. 

EXCESS  PROFITS.— Sutcliffe's  Excess  Profits  Duty  and 
the  Cases  Decided  thereon.     1919.  7s.  6d. 


EXECUTORS.— Ingpen's  Law  relating  to  Executors  and 
Administrators.— Second  Edition.     1914.    Net,  il.  5s. 

"  The  book  may  be  recommended,  with  confidence,  as  accurate, 
practical,  and  learned." — Law  Quarterly  Revieiv. 

FORMS.— Bowstead's  Collection  of  Forms  and  Prece- 
dents other  than  Conveyancing,  Company,  Local  Govern 
p  ment  and  Practice  Forms.— 2  vols.    1914.      Net,  21.  10s 

"  An  indispenaable  adjunct  to  every  practising  lawyer's 
library." — Law  Journal. 

Chitty's  Forms  of  Civil  Proceedings  in  the  King's 
Bench  Division.— Fourteenth  Edition.  By  T.  W. 
Chitty,  E.  H.  Chapman  and  P.  Clark.    1912.   21.  10s. 

"  An  indispensable  adjunct  to  every  working  lawyer's  library.'' 
— Law   Journal. 

Daniell's   Chancery   Forms   and   Precedents.— Sixth 

Edition.     By  R.  White,  F.  E.  W.  Nichols  and  H.  G. 
Garrett.     1914.  21.  10s. 

"  The  standard  work  on  Chancery  Prooedure." — Law  Quarterly 
Review. 

HIRE-PURCHASE  SYSTEM.-Russell's  Practical  Manual 
of  Hire-Trade  Law.— Fifth  Edition.     1914.       7s.  6d. 

"The  book  is  full  of  practical  suggestions." — Solimiors' 
Journal. 

INCOME  TAX.— Aggs'  Income  Tax  Act,  1918.    With  Full 
Notes  and  an  Introduction  and  Index.  1919.  Net,  12s.  6d. 

INSURANCE. — Arnould  on  the  Law  of  Marine  Insurance 

and  Average.— Ninth  Edition.     By   E.  L.   de  Hart 
and  R.  I.  Simby.     2  vols.     1914.  41.  4«. 

"Arnould'a  '  Marine  Insurance  '  is  recognised  throughout  tha 
British  Empire  and  the  United  States  as  a  standard  work  of 
almost  judicial  authority." — Law  Journal. 

Stone's  Insurance  and  Workmen's  Compensation 
Cases.— 2  vols.    1914.  Net,  21.  2s. 

"A  very  valuable  compendium  of  the  case  law  of  insurance." — 
Soltoitors'  Journal. 

INTERNATIONAL  LAW.— Anthonis'  Sanctions  of  Inter- 
national Law.    1917.  Net,  U. 

Wheaton's  Elements  of  International  Law.— Fifth 
English  Edition.  By  Coleman  Phillipson,  LL.D. 
With  an  Introduction  by  the  Right  Hon.  Sir  Frederick 
Pollock,  Bart.,  D.C.L.,  LL.D.     1916.  21. 

"  Wheaton  stands  too  high  for  criticism." —TIatr  Timst. 


LAND  VALUES— Napier's  New  Land  Taxes  and  their 
Practical  Application.— Second  Edition.   1912.    11.  Is. 

"  Napier's  explanatory  summary  of  the  new  taxation  ;ind  his 
notes  on  the  sections  are  admirable." — Law   Quarterly  Review. 

LANDLORD  AND  TENANT.— Woodfall's  Law  of  Land- 
lord and  Tenant. — Nineteenth  Edition.     By  W.  Han- 
bury  Aggs.     1912.  21.  2s. 
"  Woodfall   is  feally  indispensable  to  the   practising   lawyer, 
of  whatever  de-gree  he  may  be." — Law  Journal. 


LAW  LIST,  1919. 


Net,  10s.  6rf. 


LEADING  CASES.— Caporn's  Selected  Cases  on  the  Law 
of  Contracts. — Second  Edition.     1914.  15s. 

Petrides'  Student's  Cases,  illustrative  of  all  branches 
of  the  Law.     1910.  12s.  ^d. 

6  "The  cases  appear  to  be  well  chosen  and  correctly  stated." — 
Solicitors'  Journal. 

Randall's   Selection  of   Leading   Cases  in  Equity.— 

1912.  10s.  Qd. 

"  One  of  the  foremost,  if  not  the  best,  of  Equity  case  books." — 
Law  Students'  Journal. 

Shirley's  Selection  of  Leading  Cases  in  the  Common 

Law.— Ninth  Edition.     By  E.  Watson.     1913.         18s. 
"  The  Felection  is  very  large,  though  aU  axe  distinctly  '  Leading 
Cases,'  and  the  notes  are  by  no  means  the  least  meritorious  part 
of  the  work." — Laio  Journal. 

LEGAL  HISTORY.— Deans'  Student's  Legal  History.- 

Third  Edition.     1913.  10s. 

"  There  is  no  better  short  introduction  to  the  study  of  the  law." 
— Imw  Notes. 

LIBEL  AND  SLANDER.— Ball's  Law  of  Libel  as  affecting 
Newspapers  and  Journalists.— 1912.  6s. 

"A  well-arranged  and  well-executed  work." — Law  Journal. 

Odgers'  Digest  of  the  Law  of  Libel  and  Slander.— 

Fifth  Edition.     1911.    ,  H.  18s. 

"  Should  be  found  on  the  shelves  of  every  practitioner." — Law 
Students'  Journal. 

LUNACY.— Heywood  and  Massey's  Lunacy  Practice.— 

Fourth  Edition.     1911.  U.  15s. 

"A  complete  treatise  on  lunacy  practice." — Solicitors'  Journal. 

MAGISTRATES'  PRACTICE,  1916.— By  0.  M.  Atkinson, 
Stipendiary  Magistrate  for  Leeds.  20s. 

MENTAL  DEFICIENCY.— Davey's  Law  relating  to  the 

Mentally  Defective.— Second  Edition.     19H.._      10s. 

"This  admirably  arranged  and  handy  book.''— iaic  Journal. 


MORTGAGE.— Coote's  Treatise  on  the  Law  of  Mort- 
gages.— Eig-hth  Edition.  By  Sydney  E.  Williams. 
2  vols.     1912.  l^et,  Zl.  3a. 

"  It  19  essentially  a  practitioner's  book,  and  we  pronounce  it 
'one  of  the  best.'  " — Law  Notes. 

NATIONAL  INSURANCE.  Watts  on  National  Insur- 
ance,—1913.  12s.  6rf. 

NIGERIA.— Titles  to  Land  in  Nigeria.— 1916.        Net  30.?. 

NOTARY.--Brooke's  Office  and  Practice  of  a  Notary. 

—Seventh  Edition.     By  J.  Cranstoun.     1913.     \l.  10.s. 
"The  book  is  an  eminently  practical  one,  and  containa  a  very 
complete  collection  of  notarial  precedents." — Law  Journal. 

PARTNERSHIP.— Pollock's    Digest    of    the    Law     of 

Partnership.— Tenth  Edition.     1915.  10s. 

PLEADING.— Bullen  and  Leake's  Precedents  of  Plead- 
ings.— Seventh  Edition.  By  W.  Blake  Odgrrs,  K.C, 
and  Walter  Blake  Odgers.     1915.  21.   10s. 

"The  standard  work  on  modern  pleading." — Law  Journal. 

Eustace's  Practical  Hints  on  Pleading. — 1907.        5s. 

"  Especially   useful  to  young  solicitors  and   students  of  both 
branches  of  the  le^al  profession." — Law  Time.i. 

Odgers'  Principles  of  Pleading  and  Practice.— Eighth 
Edition.     1918.  15s. 

"  The  safest  possible  guide  in  all  matters  affecting  pleading 
and  practice." — Law  Journnl. 

POOR  LAW  SETTLEMENT.— Davey's  Poor  Law  Settle- 
ment and  Removal. — Second  Edition.     1913.  158. 

"  The  law  of  the  subject  is  most  industriously  and  lucidly  set 

out." — The  Spectator. 

POWERS.— Farwell's    Concise    Treatise   on    Powers.— 

Third  Edition.     By  C.   J.   W.   Farwell    and    F.   K. 

Archer.     1916.  1/.  ISs. 

PRIVATE     BILLS.  -Landers'    Procedure    and     Practice 

relating  to  Private    Bills  in    Parliament.       1919. 

1^  12.V. 

PRIZE  CASES.— Cases  Decided  in  the  Prize  Court  and 
on  Appeal  to  the  Privy  Council. 

Each  Part  }^el,  7s.  6d. 
PROFITEERING.    The    Profiteering    Act,  1919.       Fully 
Annotated.     By  L.  W.  J.  Co.stello  and  R.  O'Sult--  '^ 
With  a  Foreword  by  0.  A.  McCurdy,  K.G.,  M.P 

Net,  OS. 

PROPERTY.— Strahan's  General  View  of  the  Law  of 

Property.— Sixth  Edition.     By  J.  A,  St.-v.mv.  n.ssisted 

by  J,  Sinclair  Baxter.     1919.  16s. 

"  We  know  of  no  better  book  for  the  class-room." — Laio  Times. 


RATING.— Davey's   Law    of    Rating.— With    Supplement 

bringing  the  Work  down  to  June,  1919.         Net,  11.  10s. 

\*  The  Supplement  may  he  had  separately,  Net,  5s. 

"  A-  oomplete  and  exhaustive  treatise  on  the  subject,  beyond 

doubt  the  most  comprehensive  which  has  yet  appeared." — Lcno 

Journal. 

RECEIVERS  AND  MANAGERS.— Riviere's  Law  relating 
to  Receivers  and  Managers. — 1912.  95. 

STATUTES.— Chitty's  Statutes  to  End  of  1920.    Net,  171. 

Full  Particulars  on  application. 
TORTS.— Addison's  Law  of  Torts.- Eighth  Edition.     By 
W.  E.  Gordon  and  W.  H.  Griffith.   1906.   Net,  11.  18s. 
"  Essentially  the  practitioner's  text-book." — Law  Journal. 

Pollock's  Law  of  Torts.— Tenth  Edition.    1916.  11.  10s. 

"  Concise,  logically  arranged,  and  accurate." — Law  Times. 

%*  An  Analysis  of  the  above  for  Students. — Second 

Edition.     By  J.  K.  Mannooch.     1916.  5s. 

TRADE  UNIONS.— Greenwood's  Law  relating  to  Trade 

Unions.— 1911.  10s. 

"  An  admirably  clear  exposition  of  the  law." — Law  Quarterly 
Eeview. 
A  Supplement  to  above,  including  the  Trade  Union  Act, 
1913.     1913.  Net,3s.e^. 

The  two  works  together,  net,  10s. 
TRUSTS  AND  TRUSTEES.— Godefroi  on  the  Law  of 
Trusts  and  Trustees. — Fourth  Edition.     By  Sydney 
E.  Williams.     1915.  11.  16s. 

"An  eminently  practical  and  useful  work." — Laiv  Times. 

WAR.— Higgins'  Defensively  Armed  Merchant  Ships.— 

1917.  Net,  Is. 

Page's  War  and  Alien  Enemies. — The  Law  afPecting 
theii-  Personal  and  Trading  Rights;  and  herein  of  Con- 
traband of  War  and  the  Capture  of  Prizes  at  Sea. 
Second  Edition.     1915.  Net,  6s.  6<f. 

WILLS.— Theobald's   Concise   Treatise  on  the   Law  of 
Wills.— Seventli   Edition.      1908.  21. 

"  Indispensable  to  the  conveyancing  practitioner." — Law  Times. 

WORKMEN'S    COMPENSATION.  — Costs     under     the 

Workmen's  Compensation  Act. —With  Precedents. 

1915.  5s. 

Knowles'  Law  relating  to  Compensation  for  Injuries 

to  Workmen.— Third  Edition.     1912.  IZ. 

"  Its  merits  entitle  it  to  rank  with  the  best  of  the  treatises  on 
the  subject." — Law   Quarterly  Review. 

Workmen's  Compensation  Reports.— A  complete  Series 
of  Reports  of  Cases  on  the  subject  of  Workmen'^  Com- 
pensation.    With  Annotated  Index. 

Subscription  for  1919,  19s.  net  (post  free). 

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